DocketNumber: No. 2011AP185
Citation Numbers: 340 Wis. 2d 232, 2012 WI App 29
Judges: Hoover, Mangerson, Peterson
Filed Date: 2/14/2012
Status: Precedential
Modified Date: 9/9/2022
¶ 1. Lisa Bowen and Daniel Lange (collectively, Bowen) appeal a judgment dismissing their wrongful death claims following the death of their mother, Sara Lange, in a car accident. Sara was a passenger in a car driven by her husband, Thomas Lange, and insured by American Family Insurance
¶ 2. American Family cross-appeals, arguing the circuit court erred by failing to dismiss a wrongful death claim brought by Bowen as trustee for the Estate of Sara Lange. American Family acknowledges that the Estate may bring a survival action for Sara's pain and suffering, but it argues the Estate is barred from bringing a wrongful death claim. Bowen, however, concedes that the Estate is not making any claim for wrongful death. The issue of the Estate's wrongful death claim is therefore a nullity, and we need not address it. Accordingly, we dismiss American Family's cross-appeal.
BACKGROUND
¶ 3. Bowen's complaint alleged that she was the adult child of Sara Lange. On or about October 26, 2007, Sara was a passenger in a vehicle insured by American Family and operated by her husband,
¶ 4. Bowen asserted a wrongful death claim against American Family for Sara's death. She acknowledged that, under Wisconsin's wrongful death statute, subject to certain protections for the deceased's minor children, a wrongful death claim belongs to the deceased's surviving spouse.
¶ 5. American Family moved to dismiss the complaint. It argued Bowen could not recover for Sara's wrongful death because, under Wis. Stat. § 895.04(2), the surviving spouse has sole ownership of the wrongful death claim. In response, Bowen contended that
¶ 6. Following a hearing, the circuit court granted American Family's motion to dismiss Bowen's wrongful death claim. However, the court determined the complaint sufficiently alleged facts that, if true, would entitle the Estate to recover for Sara's pain and suffering. The court therefore denied American Family's motion as to the Estate's claim for pain and suffering.
DISCUSSION
I. Bowen's appeal
¶ 7. Bowen contends the circuit court erred by granting American Family's motion to dismiss her wrongful death claim. However, in response, Bowen submitted materials outside the pleadings for the circuit court's consideration. If matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss is treated as one for summary judgment and disposed of as provided in Wis. Stat. § 802.08. See Wis. Stat. § 802.06(2)(b). Because Bowen's submissions were not excluded, we review the motion as one for summary judgment.
¶ 9. To answer these questions, we must interpret several statutory provisions. Statutory interpretation presents a question of law that we review independently. Estate of Lamers v. American Hardware Mut. Ins. Co., 2008 WI App 165, ¶ 7, 314 Wis. 2d 731, 761 N.W.2d 38. "The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself." Id., ¶ 8. If the meaning of the words in the statute is plain, we simply apply that language to the facts before us. Id.
A. Surviving spouse's disclaimer of wrongful death claim
¶ 10. Under Wisconsin's wrongful death statute, a person who causes the death of another by a wrongful
¶ 11. The right to bring a wrongful death action is strictly limited to those parties designated by the legislature under Wis. Stat. § 895.04. Steinbarth v. Johannes, 144 Wis. 2d 159, 163-64, 423 N.W.2d 540 (1988). Wisconsin Stat. § 895.04(1) states that the eligible plaintiffs are the deceased's personal representative or "the person to whom the amount recovered belongs." This second category of plaintiffs is further described in Wis. Stat. § 895.04(2), which establishes a hierarchy of claimants eligible to recover. Subsection 895.04(2) provides that if the deceased does not leave behind minor children, "the amount recovered shall belong and be paid to the spouse or domestic partner." However, if no spouse or domestic partner survives, the amount recovered belongs "to the deceased's lineal heirs as determined by [Wis. Stat. §] 852.01." Wis. Stat. § 895.04(2). Under Wis. Stat. § 852.01(l)(a) and (b), if the deceased's spouse or domestic partner does not survive, the deceased's next lineal heirs are his or her children.
¶ 12. The language of these statutes is clear. When there are no surviving minor children, the wrongful death recovery "shall belong and be paid" to the surviving spouse. Wis. Stat. § 895.04(2). Only if there is no surviving spouse does the recovery belong to the lineal heirs under Wis. Stat. § 852.01 — that is, the
¶ 13. Bowen argues that, even if the right of recovery for wrongful death belongs exclusively to the surviving spouse, the surviving spouse can disclaim that right under the probate code. Bowen cites Wis. Stat. § 852.13, entitled "Right to disclaim intestate share," which provides that "[a]ny person to whom property would otherwise pass under [Wis. Stat. §] 852.01 may disclaim all or part of the property as provided under [Wis. Stat. §] 854.13." Wisconsin Stat. § 854.13(2)(a)2., in turn, states that a person who is a beneficiary under a governing instrument may disclaim property by delivering a written instrument of disclaimer. Bowen argues that, because Thomas disclaimed his right to recover for Sara's wrongful death, he should be treated as having predeceased Sara. See Wis. Stat. § 854.13(7)(a) (unless governing instrument provides otherwise, disclaimed property devolves as if disclaimant predeceased decedent). Thus, Bowen contends the right of recovery should pass to Sara's next lineal heirs — her adult children.
¶ 14. We disagree. The probate statutes Bowen cites have no direct bearing on the issue of who owns the right of recovery in a wrongful death action. Wisconsin Stat. § 852.13 allows disclaimer by a person "to whom
¶ 15. Bowen attempts to draw an analogy between this case and Steinbarth. There, Patricia Johannes' adult children brought a wrongful death action against Patricia's husband, Bernard Johannes, alleging that he intentionally shot and killed Patricia. Steinbarth, 144 Wis. 2d at 161-62. The circuit court dismissed the children's complaint, concluding that the wrongful death statute precluded a suit by the decedent's adult children when the decedent was survived by a spouse. Id. at 162-63. On appeal, our supreme court reversed, holding that "a spouse who feloniously and intentionally kills his or her spouse is not a surviving spouse for purposes of the wrongful death statute, but instead is treated as though having predeceased the decedent." Id. at 161. The court reached this result by applying Wis. Stat. § 852.01(2m) (1985-86), which, at that time, provided that an heir who "feloniously and intentionally killed" the decedent was treated as having predeceased the decedent for purposes of intestate succession.
¶ 17. Furthermore, the Steinbarth court explicitly stated that its holding was consistent with the court's prior interpretation of the wrongful death statute in Cogger. See Steinbarth, 144 Wis. 2d at 168. In Cogger, the court held that surviving children could not bring a wrongful death action against the decedent's surviving
[T]he cause of action for wrongful death [in Cogger] was based on a negligence theory. There is no basis under the wrongful death statute or otherwise to bar a surviving spouse, who unintentionally but negligently causes his or her spouse's death, from seeking recovery for the loss of that spouse from a more negligent tortfeasor.
In sharp contrast, however, is the situation where the surviving spouse intentionally kills his or her spouse. In this situation, the surviving spouse cannot under any conceivable circumstance seek recovery under the wrongful death statute for the loss of the decedent.
Steinbarth, 144 Wis. 2d at 168-69. Thus, the Steinbarth court drew a clear distinction between cases where a surviving spouse intentionally kills his or her spouse and those where the surviving spouse is merely negligent. In this case, as in Cogger, there is no allegation that Thomas intentionally killed Sara.
¶ 18. Bowen also contends that we must apply the probate disclaimer provisions because the Steinbarth court incorporated the entirety of Wis. Stat. ch. 852 into the wrongful death statute. She is mistaken. The court merely stated that Wis. Stat. § 895.04(2) should be "construed in conjunction with" one specific subsection of ch. 852 in cases where the surviving spouse intentionally killed the decedent. See Steinbarth, 144 Wis. 2d at 167.
¶ 19. Finally, Bowen argues that refusing to recognize a surviving spouse's disclaimer of a wrongful
B. Loss of society and companionship
¶ 20. In the alterative, Bowen argues that Wis. Stat. § 895.04(4) permits adult children to recover for loss of their parent's society and companionship, even if the right of recovery under Wis. Stat. § 895.04(2) belongs exclusively to the surviving spouse. Subsection 895.04(4) distinguishes between two types of damages available in a wrongful death action: (1) pecuniary damages, which may be awarded "to any person entitled to bring a wrongful death action"; and (2) "[ajdditional damages" for loss of society and companionship which may be awarded "to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death." Bowen concedes that, under § 895.04(4)'s plain language, only a person entitled to bring a wrongful death action may recover pecuniary damages. However, she asserts that any relative listed in § 895.04(4) may recover loss of
¶ 21. We do not read Wis. Stat. § 895.04(4) as expanding the class of claimants who may recover loss of society and companionship damages. Instead, we read § 895.04(4) as limiting the availability of loss of society and companionship damages to certain persons within the class of claimants entitled to bring wrongful death actions. In other words, anyone entitled to bring a wrongful death claim under Wis. Stat. §§ 895.04(1) and (2) may recover pecuniary damages, but loss of society and companionship damages are only available if the claimant is the decedent's spouse, child, parent, or minor sibling. So, for example, if a decedent's adult sibling is entitled to bring a wrongful death claim and recover pecuniary damages, § 895.04(4) nevertheless prevents the sibling from recovering damages for loss of society and companionship.
¶ 22. Bowen's interpretation of Wis. Stat. § 895.04(4) is at odds with Wis. Stat. § 895.04(1) and (2), which expressly set forth the persons entitled to bring wrongful death actions and the persons to whom the amount recovered belongs. Additionally, her reasoning implicitly conflicts with cases holding that adult children cannot recover when the decedent's spouse survives. See Cogger, 35 Wis. 2d at 355-57; Xiong, 255 Wis. 2d 693, ¶ 13. Finally, our supreme court has rejected the proposition that § 895.04(4) "creates separate and distinct causes of action in the spouse,... children, and parents of the deceased so that each might recover for their respective losses." Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 492, 494, 387 N.W.2d 751 (1986). While Bowen argues that "standing
II. American Family's cross-appeal
¶ 23. In its cross-appeal, American Family argues the circuit court erred by failing to dismiss a wrongful death claim brought by Bowen as trustee for the Estate of Sara Lange. American Family refers us to the circuit court's written judgment on the motion to dismiss, where the court stated American Family's motion was "denied as to [Bowen] acting as trustee for the estate of the decedent on the claims for the wrongful death and pain and suffering." (Emphasis added.) American Family acknowledges that the Estate may bring a survival action for Sara's pain and suffering, but it argues the Estate is barred from bringing a wrongful death claim.
¶ 24. However, based on our review of the record, the Estate is not making a claim for wrongful death. Bowen's complaint did not assert a wrongful death claim on behalf of the Estate. The parties' circuit court briefs did not refer to any wrongful death claim by the Estate, nor was any such claim addressed during the hearing on American Family's motion to dismiss. Moreover, Bowen's brief in the cross-appeal concedes that the Estate is not making any wrongful death claim. Therefore, the circuit court judgment's reference to the Estate's wrongful death claim, while erroneous, is also a nullity. Accordingly, we need not address American
Judgment affirmed; cross-appeal dismissed.
For clarity, we refer to Thomas and Sara Lange by their first names throughout this opinion.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Neither party contends that Sara had any minor children at the time of her death.
Under the current version of the statutes, Wis. Stat. § 852.01(2m) states that the inheritance rights of an heir who