Whenever a life is lost, the family surrounding that person is often placed in difficult circumstances. In Wisconsin, families of decedents lost in an accident have legal recourse under the wrongful death statute. Wisconsin Statute §895.04 governs these legal rights and provides a right to compensation for loss of the relational interest existing between a beneficiary and the decedent. Weiss v. Regent Properties, Ltd., 118. Wis. 2d 225 (1984).
Many family members have the right to bring a wrongful death action, but these rights are hierarchical. The wrongful death statute provides the first right of recovery to the spouse or domestic partner of the decedent, but there are limitations if the decedent has minor children. In such a scenario, when there is a recovery the court “shall determine the amount, if any, that should be set aside for the protection of such children….” A settlement in a wrongful death case involving minor children “shall be void unless approved by a court of record.” Wis. Stat. §895.04(2).
In contrast to the rights of minor children, the Wisconsin Court of Appeals has held that the statute bars a decedent’s adult child from recovering damages for loss of society and companionship if the decedent had a surviving spouse. Bowen v. American Family Ins. Co., 2012 WI App 29. If there is no surviving spouse, then the right to bring a claim passes to lineal heirs as determined in Wisconsin Statute §852.01, with the first in line being the children. If the decedent had no spouse or domestic partner, no children, and no grandchildren, the decedent’s parents have the next right of recovery followed by siblings who were minors at the time of death. In the event separate claims are brought for the same wrongful death, such as if there are multiple surviving adult children, the actions will be consolidated.
Although the wrongful death statute provides a list of who may recover on a wrongful death claim, it does not necessarily say that adult children may recover for the death of a parent. The Wisconsin Court of Appeals explicitly stated that in most cases, adult children may recover for loss of society and companionship for wrongful death of a parent because the term “children” encompasses both minor and adult offspring. Pierce v. American Family Mut. Ins. Co., 2007 WI App 152. However, the Wisconsin Supreme Court has also held that an adult child of a deceased parent lacks standing to recover for loss of society and companionship in a wrongful death case based on medical malpractice because of restrictions in the medical malpractice statute . Czapinski v. St. Francis Hosp., Inc., 2000 WI 80. Therefore, not every wrongful death in Wisconsin provides an avenue for adult children to bring a wrongful death claim.
In addition to the limitations on standing for a wrongful death action, the Wisconsin statutes also limit financial compensation for any loss of society and companionship claim due to a wrongful death. The statute states a limit of $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult. Wis. Stat. §895.04(4). These limitations sound simple, but they are often complex.
Sometimes in a deadly accident, the liability is not all on one party, and the decedent and/or the person entitled to recover might have been partially at fault. In such a scenario, the entire claim would be barred if the deceased person and/or the person entitled to recover is more than 50% responsible for the accident. Wis. Stat. §895.04(7). A common situation is when a husband is the primary cause of an accident that results in the death his wife. Because the husband is the “person entitled to recover” for his wife’s wrongful death claim, the husband’s negligence would bar his claim for the wrongful death of his spouse. However, if the husband also dies in the accident, his wife’s wrongful death claim would pass to his children, and the children could recover because they had no contributory negligence.
The wrongful death statute does not explicitly state the order of operations regarding an analysis of contributory negligence and the implementation of the loss of society and companionship damage award limit. However, the Wisconsin Supreme Court has held that the analysis of contributory negligence must occur before the damage limit is imposed. Mueller v. Siler Fleet Trucking Co., 254 Wis. 458 (1949). The Supreme Court concluded the jury must first find the total amount of damages suffered by the plaintiff. The jury is to then analyze contributory negligence. If the award is still higher than the statutory limit, then the limit is imposed to cap the award. For example: if the jury finds that an award of $1,000,000 would be appropriate for the loss of society and companionship of a deceased parent, but the jury found the parent to be 40% contributorily negligent, then by law the award would be reduced to $600,000. Since that award is above the statutory limit, by law the court would reduce it again to $350,000. This rationale was reaffirmed almost fifty years later. Chang v. State. Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549 (1994).
Any untimely death is a tragedy. The Wisconsin Legislature recognizes this and provides some legal recourse to families who have lost loved ones due to the negligence of another. However, there are limitations governing who may bring a wrongful death action and how large an award the plaintiff may receive. When facing such a claim, insurance companies must make sure that the plaintiff has the proper standing. As settlement negotiations evolve, all parties need to know the statutory damage limitations and how a contributory negligence analysis may affect those monetary caps.