2014 WI 82
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2402
COMPLETE TITLE: Hailey Marie-Joe Force, a/k/a Hailey Marie-Joe
Dziewa, a
minor, by her Guardian Ad Litem, Joseph J.
Welcenbach,
Plaintiff-Appellant,
The Estate of Billy Joe Force, by its Special
Administrator,
Plaintiff,
v.
American Family Mutual Insurance Company,
Jeffrey A. Brown
and Regent Insurance Company,
Defendants-Respondents.
------------------------------------------------
Mehgan Force, a minor, by her Guardian ad Litem,
Jason
Oldenburg, and Lauren Force, a minor, by her
Guardian ad
Litem, Jason Oldenburg,
Plaintiffs-Appellants,
v.
American Family Mutual Insurance Company and
Jeffrey A.
Brown,
Defendants-Respondents,
Regent Insurance Company,
Defendant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 18, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 15, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: J. Mac Davis
JUSTICES:
CONCURRED: PROSSER, J., concurs. (Opinion filed.)
DISSENTED: ROGGENSACK, ZIEGLER, GABLEMAN, JJJ., dissent.
(Opinion filed.)
ZIEGLER, J., dissent. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants, there were briefs by Joseph
J. Welcenbach and Welcenbach Law Offices, S.C., Milwaukee, and
Jason R. Oldenburg and The Previant Law Firm, S.C., Milwaukee,
and oral argument by Joseph J. Welcenbach.
For the defendant-respondent American Family Mutual
Insurance Company and Jeffrey A. Brown, there was a brief by
James C. Ratzel, Leslie A. Schunk, and Ratzel & Associates, LLC,
Brookfield, and oral argument by Leslie A. Schunk.
For the defendant-respondent Regent Insurance Company there
was a brief by Donald H. Piper, Jon D. Monson, and Piper &
Schmidt, Milwaukee, and oral argument by Donald H. Piper.
An amicus curiae brief was filed by Susan R. Tyndell, Peter
M. Young, D. James Weis, and Habush Habush & Rottier, S.C.,
Rhinelander, on behalf of the Wisconsin Association for Justice.
2
2014 WI 82
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2402
(L.C. No. 2011CV3151 & 2012CV417)
STATE OF WISCONSIN : IN SUPREME COURT
Hailey Marie-Joe Force, a/k/a Hailey Marie-Joe
Dziewa, a minor, by her Guardian Ad Litem,
Joseph J. Welcenbach,
Plaintiff-Appellant,
The Estate of Billy Joe Force, by its Special
Administrator,
Plaintiff,
v.
American Family Mutual Insurance Company,
Jeffrey A. Brown and Regent Insurance Company,
FILED
Defendants-Respondents.
JUL 22, 2014
Diane M. Fremgen
----------------------------------------------- Clerk of Supreme Court
Mehgan Force, a minor, by her Guardian ad
Litem, Jason Oldenburg, and Lauren Force, a
minor, by her Guardian ad Litem, Jason
Oldenburg,
Plaintiffs-Appellants,
v.
American Family Mutual Insurance Company and
Jeffrey A. Brown,
Defendants-Respondents,
Regent Insurance Company,
Defendant.
APPEAL from a judgment of the Circuit Court for Waukesha
County, J. Mac Davis, Judge. Reversed and remanded.
¶1 SHIRLEY S. ABRAHAMSON, C.J. This is an appeal of a
judgment of the circuit court for Waukesha County, J. Mac Davis,
Judge, granting summary judgment in favor of Jeffrey Brown,
American Family Mutual Insurance Company, and Regent Insurance
Company (collectively the defendants). The part of the judgment
at issue here dismissed the consolidated actions of Hailey
Marie-Joe Force, Mehgan Force, and Lauren Force, collectively
the minor children of Billy Joe Force, the deceased, against the
defendants.
¶2 The court of appeals certified the action to this
court pursuant to Wis. Stat. § (Rule) 809.61.
¶3 The issue before the court is: Can minor children
recover for the wrongful death of their father under Wis. Stat.
§ 895.04(2) (2011-12),1 when the deceased leaves behind a spouse
who was estranged from the deceased and who is precluded from
recovering for the wrongful death?
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
No. 2012AP2402
¶4 Linda Force, the deceased's spouse in the instant
case, is precluded from recovery for her husband's wrongful
death because the circuit court dismissed her claim, concluding
that she has no compensable damages under the wrongful death
statute; this dismissal of Linda Force's wrongful death claim
was not appealed.
¶5 In the instant case, Linda Force did not receive any
financial support from the deceased from the time of their
separation in 1997 to the deceased's death in 2008. Their long
separation with no communication for many years was evidence
that there was no interaction or affection between the spouses.
The circuit court concluded that the unique facts of the instant
case demonstrate that the deceased's spouse had no claim for
damages for her husband's wrongful death under the wrongful
death statutes. The dismissal of Linda Force's wrongful death
claim is not before us.
¶6 The defendants argue that because the deceased's
spouse is still living, she is a "surviving spouse" under the
statutes; that her recovery for the wrongful death of her
husband is zero; and that consequently the deceased's minor
children do not have any set-aside from the surviving spouse's
recovery.
3
No. 2012AP2402
¶7 The defendants rely on the statutory hierarchy of
beneficiaries created by Wis. Stat. § 895.04(2).2 The first
class of beneficiaries is the surviving spouse, with a set-aside
from his or her recovery for minor children "in recognition of
the duty and responsibility of a parent to support minor
children." If there is a "surviving spouse," other
beneficiaries do not have a cause of action for wrongful death.
If there is no "surviving spouse," the cause of action passes to
the next beneficiary in the statutory hierarchy.
¶8 We disagree with the defendants' interpretation of the
statutes. We conclude that in order to avoid an absurd,
unreasonable result contrary to the legislative purposes of the
wrongful death statutes, Wis. Stat. §§ 895.03 and 895.04(2), we
construe the statutes under the unique facts of the instant case
to allow the minor children to recover even though the
deceased's spouse in the instant case is alive and does not
2
Steinbarth v. Johannes, 144 Wis. 2d 159, 164, 423
N.W.2d 540 (1988) ("[Wisconsin Stat. §]
895.04(2) . . . establishes a hierarchy of
beneficiaries . . . ."); Cincoski v. Rogers, 4 Wis. 2d 423, 425,
90 N.W.2d 784 (1958) ("The statutes . . . designate preferences
according to the relationship to the deceased. . . . [T]he
nonexistence of the preferred beneficiary or beneficiaries is
essential to a right of action by or in behalf of other
beneficiaries. The action must be brought by or for the
wrongful death in the order of preference fixed by the
statute."); Anderson v. Westfield Ins. Co., 300 F. Supp. 2d 726
(W.D. Wis. 2002) ("[T]he ability to recover under Wisconsin's
wrongful death statute is similar to intestate succession,
namely, a claimant has standing only if no other beneficiary
higher in the hierarchy has standing.").
4
No. 2012AP2402
(according to the circuit court) recover any damages for the
deceased husband's wrongful death.
¶9 Our result comports with the dual legislative purposes
of the wrongful death statutes: (1) to impose liability on the
wrongdoer; and (2) to protect relational interests, especially
the interests of the deceased's minor dependent children.
¶10 The statutory interpretation advocated by the
defendants would contravene these fundamental purposes of the
wrongful death statutes by barring any wrongful death claim by
Linda Force and the minor children, along with all lower-tier
beneficiaries.
¶11 The defendants call for the unfair, unreasonable
outcome that the Wisconsin legislature sought to avoid by
enacting the first wrongful death statute in 1857: the
wrongdoer would be immune from liability and no compensation
would be recovered by the deceased's relatives who would have
recovered had the deceased lived. The interpretation of
"surviving spouse" should avoid such unreasonable, absurd
results.
¶12 We examine the meaning of the phrase "surviving
spouse" in Wis. Stat. § 895.04(2), in the unique fact scenario
presented in this case.3 The words "surviving" and "spouse" are
3
Wisconsin Stat. § 895.04 uses various phrases to refer to
the primary beneficiary of a wrongful death recovery: "[i]f the
deceased leaves surviving a spouse," "if no spouse or domestic
partner survives," and "surviving spouse." All refer to the
same person. We use the phrase "surviving spouse" to refer to
each of these statutory phrases. The case law has done
similarly.
5
No. 2012AP2402
commonly used words. The text of the wrongful death statute
does not define who is or is not a "surviving spouse."
¶13 To interpret and apply the phrase "surviving spouse"
in the wrongful death statutes, we examine the text of the
wrongful death statutes using various interpretive aids. In
interpreting words in a statutory text, we do more than focus on
the dictionary definition of each word. Interpretive aids such
as the legislative purpose, prior Wisconsin case law and case
law from other jurisdictions, and statutory history help guide
our interpretation of the phrase "surviving spouse."
¶14 The legislative purposes are clear: impose liability
on the tortfeasor and allow recovery by the deceased's relatives
who would have recovered had the deceased lived. Our case law
demonstrates that courts interpret the wrongful death statutes
to apply to the unique fact situation presented by a case in
order to meet the legislative purposes, rather than apply a
strict literal interpretation of the phrase "surviving spouse."
Sister state case law similarly recognizes that a lower-tier
beneficiary can maintain a claim even if a higher-tier
beneficiary is alive, when the unique facts would otherwise
contravene the purposes of the wrongful death statutes.
¶15 The statutory history of the wrongful death statutes
demonstrates that the legislature has explicitly protected the
rights of minor children to recover for wrongful death and left
interpretation of the term "surviving spouse" to the courts in
unique and specific fact situations.
6
No. 2012AP2402
¶16 Upon examining the statutory text with these
interpretive aids, we conclude that the phrase "surviving
spouse" in Wis. Stat. § 895.04(2) does not always simply mean
any living spouse of the deceased. The meaning of the phrase
"surviving spouse" has been elucidated by scrutinizing unique
fact situations to define "surviving spouse" in accord with the
legislative purposes of the wrongful death statutes, rather than
considering only the literal meaning of the phrase "surviving
spouse."
¶17 For the reasons set forth, we interpret the phrase
"surviving spouse" in the present case as not including Linda
Force, the deceased's estranged spouse who, as a result of the
circuit court's dismissal of her wrongful death claim (which was
not appealed), is barred from recovery under Wis. Stat.
§§ 895.03 and 895.04(2). If Linda Force is not a "surviving
spouse" under the statute, the parties do not dispute that the
minor children have a cognizable claim as lineal heirs. As
lineal heirs of the deceased, the children would be first in
line for any recovery for the wrongful death of their father.
¶18 We conclude that the circuit court erred in granting
the defendants summary judgment against the minor children and
erred in dismissing the minor children's causes of action
against the defendants for wrongful death. The minor children
in the present case have a cause of action against the
7
No. 2012AP2402
defendants for wrongful death as if Linda Force were not alive
at the death of the deceased.4
¶19 Accordingly, we reverse the judgment of the circuit
court against the children and in favor of the defendants and
remand the matter to the circuit court for further proceedings
not inconsistent with this opinion.
¶20 To assist the reader, here is a table of contents to
this opinion:
Introduction: ¶¶1-20.
I. The facts and procedural history are not in dispute:
¶¶21-26.
II. We review a grant of summary judgment independently of
the circuit court, using the same methodology as the
circuit court: ¶¶27-31.
III. The statutory text provides some support for the
defendant's interpretation, but in unique fact
situations, the defendant's interpretation may not be
a reasonable one: ¶¶32-55.
IV. The interpretation and application of the wrongful
death statutes should be in accord with the explicit
legislative purposes: (1) to render a wrongdoer liable
when an injured party dies and (2) to compensate for
the loss of a relational interest caused by the
4
In light of our holding, we need not and do not address
the children's equal protection constitutional claim that if
Wis. Stat. § 895.04(2) bars their claim absent recovery by the
surviving spouse, the statute is unconstitutional.
8
No. 2012AP2402
wrongful death, especially the interests of the minor
children of the deceased: ¶¶56-68.
V. The Wisconsin case law and case law from other states
reveal that "surviving spouse" does not always simply
mean any spouse who survives the deceased: ¶¶69-110.
VI. The statutory history of the wrongful death statutes
demonstrates that the legislature has explicitly
protected the rights of minor children to recover for
wrongful death and left interpretation of the phrase
"surviving spouse" to the courts in unique and
specific fact situations: ¶¶111-125.
Conclusion: ¶¶126-129.
I
¶21 The facts and procedural history of this case are
undisputed for purposes of this appeal. Billy Joe Force, the
deceased, was driving a motor vehicle for his employer. He died
when his vehicle collided with a motor vehicle driven by Jeffrey
Brown, the individual defendant.
¶22 The deceased's estranged spouse, Linda Force, and his
three nonmarital minor children, Hailey, Mehgan, and Lauren,5
each sought compensation from Jeffrey Brown, the individual
defendant; American Family, the insurer of Brown's vehicle; and
Regent Insurance Company, the insurer of Billy Joe Force's
5
The complaint refers to Lauren Force as both "Lauryn" and
"Lauren." We use "Lauren," as the circuit court, court of
appeals, and briefs do.
9
No. 2012AP2402
employer. The allegation is that Brown's negligence caused
Billy Joe Force's death.6
¶23 Billy Joe Force and Linda Force were married in 1995
or 1996 and separated after six months of marriage. They never
were legally separated or divorced. They did not have any
children together. Billy Joe Force had three children with two
women who were not his wife. Linda Force has no legal
obligation to support these three minor children.
¶24 At the time of the motor vehicle accident in 2006,
Linda Force lived in New York; Billy Joe Force lived in
Wisconsin. During the five years before his death in 2006,
Linda Force had no contact with Billy Joe Force. Billy Joe
6
Linda Force, the estranged spouse of the deceased, and
Hailey Marie-Joe Force, Billy's youngest daughter, initiated one
action seeking wrongful death damages.
Linda Force raised claims for wrongful death both as a
surviving spouse and as special administrator for the estate of
the deceased.
Hailey made two claims: first, that she was entitled to
"an independent, cognizable claim for relief of her own" for
damages arising out of the death of her father; and second, that
in the absence of an independent claim, she was entitled to a
"statutorily protected interest under [Wis. Stat.] Sec. 895.04
as a child of the deceased with whose support the deceased was
legally charged."
Mehgan and Lauren initiated their own action, seeking
wrongful death damages. They claimed that the defendant
driver's negligence deprived them of their father's "aid, wages,
economic benefits, assistance, society, comfort and
companionship." They did not claim an offset from the recovery
of Linda Force.
The cases were consolidated by the circuit court, pursuant
to Wis. Stat. § 895.04(3), on March 30, 2012.
10
No. 2012AP2402
Force never provided any pecuniary support to Linda Force from
1997 until his death in 2008.
¶25 The circuit court granted summary judgment to the
defendants, concluding, inter alia, that Linda Force, as a
surviving, estranged spouse, had no compensable damages under
the wrongful death statute and that none of the three children
had a cause of action for wrongful death.7
¶26 The three minor children appealed the dismissal of
their actions. Linda Force has not appealed the dismissal of
her personal claim for damages for wrongful death.
II
¶27 We review a grant of summary judgment independently of
the circuit court, using the same methodology as the circuit
court.8 Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law.9
¶28 The material facts are undisputed in the present case
and the resolution of the dispute between the three minor
children and the defendants turns on a question of law, that is,
the interpretation and application of the wrongful death
statutes to these undisputed facts. The interpretation and
application of a statute to undisputed facts are ordinarily
7
A survival claim by the estate of the deceased is not
before us.
8
Park Bank v. Westburg, 2013 WI 57, ¶36, 348 Wis. 2d 409,
832 N.W.2d 539.
9
Wis. Stat. § 802.08(2).
11
No. 2012AP2402
questions of law that this court determines independently of the
circuit court, although it benefits from the circuit court's
analysis.10 We also benefit from the analysis of the court of
appeals in its certification memorandum in the present case.11
¶29 To interpret and apply the phrase "surviving spouse"
used in the wrongful death statute, we examine the text of the
statute.
¶30 In examining the statutory text, however, we do more
than focus on a dictionary definition of each word. Words are
given meaning to avoid absurd, unreasonable, or implausible
results and results that are clearly at odds with the
legislature's purpose.12 We scrutinize the words in view of the
10
Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶21,
350 Wis. 2d 509, 835 N.W.2d 226.
11
Lornson v. Siddiqui, 2007 WI 92, ¶13, 302 Wis. 2d 519,
735 N.W.2d 55.
12
Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶10,
232 Wis. 2d 587, 592, 605 N.W.2d 515; Seider v. O'Connell, 2000
WI 76, ¶32, 236 Wis. 2d 211, 612 N.W.2d 659; Teschendorf v.
State Farm Ins. Cos., 2006 WI 89, ¶¶15, 18, 32, 293 Wis. 2d 123,
717 N.W.2d 258.
12
No. 2012AP2402
purpose of the statute.13 We consider the meaning of words in
the context in which they appear.14 The definition of a word or
phrase can vary in different circumstances.15 Different fact
scenarios may require different interpretations of the text,
because words cannot anticipate every possible fact situation.16
"[R]easonable minds can differ about a statute's application
13
State v. Hanson, 2012 WI 4, ¶17, 338 Wis. 2d 243, 255,
808 N.W.2d 390, 396 ("Context and [statutory] purpose are
important in discerning the plain meaning of a statute. We
favor an interpretation that fulfills the statute's purpose.")
(citations omitted); Klemm v. Am. Transmission Co., LLC, 2011 WI
37, ¶18, 333 Wis. 2d 580, 798 N.W.2d 223 ("An interpretation
that fulfills the purpose of the statute is favored over one
that undermines the purpose."); Lagerstrom v. Myrtle Werth
Hosp.-Mayo Health System, 2005 WI 124, ¶51, 285 Wis. 2d 1, 700
N.W.2d 201 (examining "legislative goals" to interpret a
statute); Alberte, 232 Wis. 2d 587, ¶10 (courts need not adopt a
literal or usual meaning of a word when acceptance of that
meaning would thwart the obvious purpose of the statute); United
Wis. Ins. Co. v. LIRC, 229 Wis. 2d 416, 425-26, 600 N.W.2d 186
(Ct. App. 1999) ("Fundamental to an analysis of any statutory
interpretation is the ascertainment and advancement of the
legislative purpose.").
14
Alberte, 232 Wis. 2d 587, ¶10 ("While it is true that
statutory interpretation begins with the language of the
statute, it is also well established that courts must not look
at a single, isolated sentence or portion of a sentence, but at
the role of the relevant language in the entire statute.");
Seider, 236 Wis. 2d 211, ¶43 (contextual approach is not new);
Klemm, 333 Wis. 2d 580, ¶18 ("The statutory language is examined
within the context in which it is used.").
15
Sauer v. Reliance Ins. Co., 152 Wis. 2d 234, 241, 448
N.W.2d 256 (Ct. App. 1989).
16
Northrop v. Opperman, 2011 WI 5, ¶22 n.8, 331
Wis. 2d 287, 795 N.W.2d 719; Teschendorf, 293 Wis. 2d 123, ¶20.
13
No. 2012AP2402
when the text is constant but the circumstances to which the
text may apply are kaleidoscopic."17
¶31 We also examine our case law interpreting the statute18
and the statutory history of the statute to determine the
meaning of words.19
III
¶32 This court has declared that there is no common-law
action for wrongful death; the right to bring suit is purely
statutory.20
17
Seider, 236 Wis. 2d 211, ¶43.
18
Nowell v. City of Wausau, 2013 WI 88, ¶21, 351 Wis. 2d 1,
838 N.W.2d 852; Juneau County Star-Times v. Juneau County, 2013
WI 4, ¶66, 345 Wis. 2d 122, 824 N.W.2d 457; State v. Davison,
2003 WI 89, ¶61, 263 Wis. 2d 145, 666 N.W.2d 1.
19
"Statutory history encompasses the previously enacted and
repealed provisions of a statute. By analyzing the changes the
legislature has made over the course of several years, we may be
assisted in arriving at the meaning of a statute. Therefore,
statutory history is part of the context in which we interpret
the words used in a statute." Richards v. Badger Mut. Ins. Co.,
2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581 (citations
omitted). See, e.g., LaCount v. General Cas. Co., 2006 WI 14,
¶31, 288 Wis. 2d 358, 709 N.W.2d 418; VanCleve v. City of
Marinette, 2003 WI 2, ¶6, 258 Wis. 2d 80, 655 N.W.2d 113; State
v. Byers, 2003 WI 86, ¶¶22-27, 263 Wis. 2d 113, 665 N.W.2d 729;
Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 980-84, 542
N.W.2d 148 (1996).
20
Cogger v. Trudell, 35 Wis. 2d 350, 353, 151 N.W.2d 146
(1967). We need not re-examine this issue in the instant case.
For a discussion of a common-law action for wrongful death,
see, e.g., Restatement (Second) of Torts, § 925 cmt. k; John
Fabian Witt, From Loss of Services to Loss of Support: The
Wrongful Death Statutes, the Origins of Modern Tort Law, and the
Making of the Nineteenth-Century Family, 25 Law & Soc. Inquiry
717 (2000); Wex S. Malone, The Genesis of Wrongful Death, 17
Stan. L. Rev. 1043 (1965).
14
No. 2012AP2402
¶33 We turn first to the text of the wrongful death
statutes, Wis. Stat. §§ 895.03 and 895.04(2).
¶34 Wisconsin's wrongful death statute was first enacted
in 1857.21 The present statute retains the 1857 statutory
framework:
21
The 1857 statute, ch. 71, Laws of 1857, had two sections,
the first explaining the prerequisites for a claim, and the
second explaining who may bring the action and who may recover
damages:
§ 1. That whenever the death of a person shall be
caused by a wrongful act, neglect or default, and the
act, neglect or default is such as would (if death had
not ensued) have entitled the party injured to
maintain an action and recover damage in respect
thereof; then and in every such case, the person who,
or the corporation which would have been liable, if
death had not ensued, shall be liable to an action for
damages, notwithstanding the death of the person
injured, and although the death may have been
occasioned under such circumstances as constitute an
indictable offence; Provided, That such action shall
be brought for a death caused in this State, and in
some court established by the constitution and laws of
the same.
§ 2. Every such action shall be brought by and in the
name of the personal representative of such deceased
person; and the amount recovered shall belong and be
paid over to the husband or widow of such deceased
person, if such relative survive him or her; but if no
husband or widow survive the deceased, the amount
recovered shall be paid over to his or her lineal
descendants, and to his or her lineal ancestors in
default of such descendants; and in every such action
the jury may give such damages, not exceeding $5,000,
as they shall deem fair and just in reference to the
pecuniary injury resulting from such death to the
relatives of the deceased specified in this section;
Provided, Every such action shall be commenced within
two years after the death of such deceased person.
15
No. 2012AP2402
• The statute states the conditions under which a
wrongdoer is liable for wrongful death. Wis. Stat.
§ 895.03.
• The statute lists the persons who may bring a wrongful
death action. Wis. Stat. § 895.04(1).
• The statute enumerates the persons to whom the amount
recovered belongs. Wis. Stat. § 895.04(2).
¶35 Sections 895.03 and 895.04 are viewed in pari materia,
having been created together and relating to the same topic.22
¶36 Wisconsin Stat. § 895.03 states the conditions under
which a wrongdoer is liable for wrongful death. It is
straightforward, clear, and easy to read. It is largely
unchanged since the creation of the wrongful death cause of
action in 1857.
¶37 The legislature has declared in every iteration of the
wrongful death statute since 1857, including Wis. Stat.
§ 895.03, that "in every such case" in which a wrongdoer has
caused death, the wrongdoer is "liable to an action for damages"
as if death had not ensued. Thus, the legislature has
proclaimed that a wrongdoer should be liable for a wrongful
death when the injured party could have maintained an action and
recovered damages from the defendant, had the injured party
survived.
¶38 Wisconsin Stat. § 895.03 states in full:
22
See Waranka v. Wadena, 2014 WI 28, ¶3, 353 Wis. 2d 619,
847 N.W.2d 324.
16
No. 2012AP2402
Whenever the death of a person shall be caused by a
wrongful act, neglect or default and the act, neglect
or default is such as would, if death had not ensued,
have entitled the party injured to maintain an action
and recover damages in respect thereof, then and in
every such case the person who would have been liable,
if death had not ensued, shall be liable to an action
for damages notwithstanding the death of the person
injured; provided, that such action shall be brought
for a death caused in this state (emphasis added).
¶39 No one disputes that the conditions set forth in Wis.
Stat. § 895.03 that make a wrongdoer liable for wrongful death
are met in the instant case.
¶40 Wisconsin Stat. 895.04(1) lists the persons who may
bring a wrongful death action:
(1) An action for wrongful death may be brought by the
personal representative of the deceased person or by
the person to whom the amount recovered belongs.23
¶41 In the present case, the wrongful death actions were
brought by the personal representative and by persons claiming
to be the persons to whom the amount recovered for wrongful
death belongs. No one disputes that the proper persons have
brought the instant actions.
¶42 Wisconsin Stat. § 895.04(2) enumerates the persons to
whom the amount recovered for wrongful death belongs. Unlike
Wis. Stat. §§ 895.03 and 895.04(1), § 895.04(2) is a dense and
23
Allowing someone other than the personal representative
to assert a claim was added to the statute in 1913. Ch. 186,
Laws of 1913. See also § 1, ch. 548, Laws of 1949 (permitting
an individual to bring a wrongful death action even if the
individual would also have a survival claim as administrator of
the estate; amendment supersedes Schilling v. Chicago, N. Shore
& Milwaukee R. Co., 245 Wis. 2 173, 13 N.W.2d 594 (1944)).
17
No. 2012AP2402
difficult statute to read and understand. It has evolved to its
present language by repeated legislative amendments.
¶43 Wisconsin Stat. § 895.04(2) creates a hierarchy of
persons to whom the amount recovered belongs.24 The first class
of beneficiaries is the "surviving spouse," with a set-aside for
minor children "in recognition of the duty and responsibility of
a parent to support minor children." The second class is lineal
heirs.
¶44 Wisconsin Stat. § 895.04(2) reads as follows:
(2) If the deceased leaves surviving a spouse or
domestic partner under ch. 770 and minor children
under 18 years of age with whose support the deceased
was legally charged, the court before whom the action
is pending, or if no action is pending, any court of
record, in recognition of the duty and responsibility
of a parent to support minor children, shall determine
the amount, if any, to be set aside for the protection
of such children after considering the age of such
children, the amount involved, the capacity and
integrity of the surviving spouse or surviving
domestic partner, and any other facts or information
it may have or receive, and such amount may be
impressed by creation of an appropriate lien in favor
of such children or otherwise protected as
24
Steinbarth, 144 Wis. 2d at 164 ("[Wisconsin Stat. §]
895.04(2) . . . establishes a hierarchy of
beneficiaries . . . ."); Cincoski, 4 Wis. 2d at 425 ("The
statutes . . . designate preferences according to the
relationship to the deceased. . . . [T]he nonexistence of the
preferred beneficiary or beneficiaries is essential to a right
of action by or in behalf of other beneficiaries. The action
must be brought by or for the wrongful death in the order of
preference fixed by the statute."); Anderson, 300 F. Supp. 2d at
729 ("[T]he ability to recover under Wisconsin's wrongful death
statute is similar to intestate succession, namely, a claimant
has standing only if no other beneficiary higher in the
hierarchy has standing.").
18
No. 2012AP2402
circumstances may warrant, but such amount shall not
be in excess of 50% of the net amount received after
deduction of costs of collection.25 If there are no
such surviving minor children, the amount recovered
shall belong and be paid to the spouse or domestic
partner of the deceased; if no spouse or domestic
partner survives, to the deceased's lineal heirs as
determined by s. 852.01; if no lineal heirs survive,
to the deceased's brothers and sisters.26 If any such
relative dies before judgment in the action, the
relative next in order shall be entitled to recover
for the wrongful death.27 A surviving nonresident
alien spouse or a nonresident alien domestic partner
25
This provision was adopted in substantially this form in
1962, making the surviving spouse the primary beneficiary and
granting the minor children a set-aside. See ch. 649, Laws of
1961. See ¶¶111-125, infra, which discuss the statutory history
of this section.
Changes subsequent to the 1962 amendment added additional
beneficiaries to Wis. Stat. § 895.04(2) but did not
substantially change the structure of the provision. For
example, the legislature added the words "and domestic partners"
alongside the word "spouse." 2009 Wis. Act 28, § 3269.
26
See chs. 164, 581, Laws of 1907 (adding "but if no
husband or widow or lineal descendant or ancestor survive the
deceased, the amount recovered shall be paid over to the
brothers and sisters"). Brothers and sisters were added
apparently in response to Brown v. Chicago & N.W. Ry. Co., 102
Wis. 137, 77 N.W. 748 (1898) (because the statute, Wis. Stat.
§ 4256 (1898), permitted recovery only for the spouse or lineal
descendants and ancestors of the deceased, brothers and sisters
could not recover).
27
See § 1, ch. 263, Laws of 1931.
The provision relating to the death of a relative before
judgment in a wrongful death action was added, apparently in
response to Woodward v. Chicago & N.W. Ry. Co., 23 Wis. 400
(1868) (holding that the wrongful death action terminated when
deceased's surviving spouse died before judgment). See Eleason
v. Western Cas. & Sur. Co., 254 Wis. 134, 140, 35 N.W.2d 301
(1948) (holding that the 1931 amendment controlled over previous
cases holding that wrongful death actions terminated with the
death of the holder of the claim).
19
No. 2012AP2402
under ch. 770 and minor children shall be entitled to
the benefits of this section.28 In cases subject to s.
102.29 this subsection shall apply only to the
surviving spouse's or surviving domestic partner's
interest in the amount recovered. If the amount
allocated to any child under this subsection is less
than $10,000, s. 807.10 may be applied. Every
settlement in wrongful death cases in which the
deceased leaves minor children under 18 years of age
shall be void unless approved by a court of record
authorized to act hereunder (emphasis and footnotes
added).
¶45 There is a difference between a wrongful death claim
and a survival claim. A wrongful death claim, as we explain
above, compensates the deceased's relatives for the damages they
suffer as a result of the deceased's death.29 A survival claim
28
See § 1, ch. 226, Laws of 1911 (amending the statute to
state explicitly that "non-resident alien surviving relatives
shall be entitled to the benefits of this section"). The 1911
provision relating to aliens was apparently inserted in response
to McMillan v. Spider Lake Sawmill & Lumber Co., 115 Wis. 332,
91 N.W. 979, 980-81 (1902), in which the court held that
nonresident alien citizens of foreign countries were not
entitled to recover under the wrongful death statute. The
spouse in McMillan was a Canadian citizen and did not reside in
the United States. The McMillan court asserted that the
legislature did not intend this cause of action to convey
benefits and recovery to nonresidents.
Three years later, the legislature again amended the
statute to limit nonresident alien relatives to a surviving
spouse and minor children, stating that only "a nonresident
alien surviving wife and minor children shall be entitled to the
benefits of this section." § 1, ch. 35, Laws of 1915.
29
Wisconsin Stat. § 895.04(4) provides as follows:
(4) Judgment for damages for pecuniary injury from
wrongful death may be awarded to any person entitled
to bring a wrongful death action. Additional damages
not to exceed $500,000 per occurrence in the case of a
deceased minor, or $350,000 per occurrence in the case
of a deceased adult, for loss of society and
20
No. 2012AP2402
compensates the estate of the deceased (or persons who paid
expenses on behalf of the estate) for damages suffered by the
deceased between the time of the injury and the time of death.30
¶46 The personal representative may bring both a wrongful
death claim and a survival claim, but the beneficiaries
receiving the damages recovered under the two claims may be
different.31 "[T]he right to sue under the wrongful death
statute must be distinguished from the ownership of the
recovery. Because the [wrongful death] action is granted by
companionship 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.
30
"The survival action is brought by the representative of
the deceased for personal injury damages suffered by the
deceased prior to his death. The damages accrue to the estate
of the deceased." Prunty v. Schwantes, 40 Wis. 2d 418, 422, 162
N.W.2d 34 (1968).
See also Wangen v. Ford Motor Co., 97 Wis. 2d 260, 312, 294
N.W.2d 437, 463 (1980) (quoting Koehler v. Waukesha Milk Co.,
190 Wis. 52, 56, 208 N.W. 901 (1926)):
The cause of action for the [deceased]'s pain and
suffering which . . . passes to a decedent's estate[ ]
is separate and distinct from this wrongful death
action. The estate's action is for the wrong to the
injured person; the wrongful death action belongs to
named beneficiaries for their pecuniary loss; the
latter action begins where the former ends. "It is
not a double recovery, but a recovery for a double
wrong."
31
Wangen, 97 Wis. 2d at 310.
21
No. 2012AP2402
statute, ownership of the recovery is limited to the
beneficiaries designated under the statute."32
¶47 In order to determine whether a beneficiary exists who
may recover under a wrongful death claim, the court has
frequently grappled with disputes regarding the interpretation
of the wrongful death statute's hierarchical beneficiary
structure.33 The legislature did not anticipate numerous fact
Wisconsin Stat. 895.04(5) provides:
(5) If the personal representative brings the action,
the personal representative may also recover the
reasonable cost of medical expenses, funeral expenses,
including the reasonable cost of a cemetery lot, grave
marker and care of the lot. If a relative brings the
action, the relative may recover such medical
expenses, funeral expenses, including the cost of a
cemetery lot, grave marker and care of the lot, on
behalf of himself or herself or of any person who has
paid or assumed liability for such expenses.
32
Weiss v. Regent Props., Ltd., 118 Wis. 2d 225, 230, 346
N.W.2d 766 (1984) (citations omitted) (citing Nichols v. U.S.
Fid. & Guar. Co., 13 Wis. 2d 491, 497, 109 N.W.2d 131 (1961)).
See also 2 The Law of Damages in Wisconsin § 16.15 at 16-18
(Russell M. Ware et al. eds. 2014) ("Because the purpose of
allowing damages for wrongful death is to compensate the
deceased's relatives for their loss, wrongful death damages do
not become a part of the deceased's estate.").
33
The courts have reached various outcomes based on the
facts of each case.
Cases holding for the lower-tier beneficiary to recover:
• Steinbarth v. Johannes, 144 Wis. 2d 159, 423
N.W.2d 540 (1988) (holding that a spouse who
intentionally killed the deceased is not a
"surviving spouse" and that the children hold the
claim as lineal heirs);
22
No. 2012AP2402
• Krause v. Home Mut. Ins. Co., 14 Wis. 2d 666, 112
N.W.2d 134 (1961) (holding that although the
spouse died shortly after the deceased, the
children held the claim, because satisfying the
purposes of the statute required that the phrase
"surviving spouse" not mean the spouse of the
deceased who is living at the time of the death
of the deceased, but rather the "spouse of the
deceased living when the action was commenced");
• Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33
(1940) (holding that although the children did
not have an independent claim of action against
their father for the wrongful death of their
mother, when the mother herself died, the
wrongful death that claim she held went to her
children).
Cases holding against the lower-tier beneficiary:
• Cogger v. Trudell, 35 Wis. 2d 350, 359, 151
N.W.2d 146 (1967) (holding that the deceased's
spouse who negligently killed the spouse is a
surviving spouse, and that their children have no
claim);
• Hanson v. Valdivia, 51 Wis. 2d 466, 475, 187
N.W.2d 151 (1971) (holding that when the
deceased's spouse alleged to be responsible for
the death survived, the minor surviving children
"do not have a cause of action for the wrongful
death of one of their parents when the [deceased]
is survived by his or her spouse, and the fact
that the surviving spouse was responsible for the
death does not create a new cause of action in
the children");
• Woodward v. Chicago & N.W. Ry. Co., 23 Wis. 400
(1868) (holding that when the deceased's husband
died while pursuing a wrongful death claim
against the defendant, the husband's wrongful
death claim cannot survive his death), superseded
by statute as stated in Eleason v. Western Cas. &
Sur. Co., 254 Wis. 134, 139, 35 N.W.2d 301
(1948).
23
No. 2012AP2402
scenarios in its enactment of the wrongful death statute, and
the courts have had to fill the gaps in the statute.
¶48 To determine the meaning of the phrase "surviving
spouse" in the unique fact scenario of the instant case, we must
fill the gap in the statute. In enacting Wis. Stat.
§ 895.04(2), the legislature did not anticipate the fact
scenario presented in the instant case in which a long-time
estranged spouse does not obtain a divorce, has no recoverable
damages on the death of the deceased husband, and has no legal
obligation to support nonmarital minor children of the deceased.
¶49 In referring to a "surviving spouse" and creating a
hierarchical structure of beneficiaries in the wrongful death
statute, the legislature envisioned an intact marriage with
minor marital children whom both the deceased and the deceased's
spouse were obliged to support. Indeed, "[a] careful reading of
the entire section [895.04(2)] makes it clear that the trial
court in an attempt to protect the children must work from the
amount recovered by the spouse who is charged with the support
of the minor children."34
¶50 The defendants argue that the statutory hierarchy of
beneficiaries bars the minor children in the present case from
asserting a claim for wrongful death because the deceased left a
• Bowen v. Am. Family Ins. Co., 2012 WI App 29,
¶19, 340 Wis. 2d 232, 811 N.W.2d 887 (holding
that a primary beneficiary under the wrongful
death statutes could not waive his claim and pass
it on to a secondary beneficiary).
34
Cogger, 35 Wis. 2d at 358.
24
No. 2012AP2402
living spouse, and the surviving spouse, Linda Force, cannot
claim any damages for wrongful death according to the circuit
court.
¶51 The defendants rest their position on a literal
interpretation of the phrase "surviving spouse":
• Linda Force is the spouse of the deceased;
• she is still living;
• as an estranged spouse she cannot, according to the
circuit court's dismissal of her claim, recover
damages any for pecuniary loss and loss of society and
companionship;
• the minor children's share is limited under the
statute to a set-aside from the surviving spouse's
recovery; and
• because Linda Force's recovery is zero, the minor
children's set-aside is also zero.
¶52 The defendants' reading of the statute is not without
support in the text, but the defendants' interpretation is not
necessarily a reasonable reading of the phrase "surviving
spouse" in unique fact situations.
¶53 First, the statute does not define who is or is not a
surviving spouse.35
¶54 Second, the text of Wis. Stat. § 895.04(2) does not
expressly state that minor children are barred from recovery
when a surviving spouse fails to recover any damages. Rather,
35
Steinbarth, 144 Wis. 2d 159.
25
No. 2012AP2402
§ 895.04(2) provides that minor children get a set-aside from
the surviving spouse's recovery and recover as lineal heirs if
no surviving spouse exists.
¶55 A study of the text demonstrates that we are unable to
discern the answer to our inquiry in the present case by a mere
examination of the words of Wis. Stat. § 895.04(2) isolated from
interpretive aids. We next look for assistance from the
legislative pronouncement of the purposes of the wrongful death
statutes.
IV
¶56 The minor children's position that they should recover
under the wrongful death statutes is supported by the
legislative purposes advanced by Wis. Stat. §§ 895.03
and 895.04(2).
¶57 The legislature has declared in Wis. Stat. §§ 895.03
and 895.04(2) that the purposes of the wrongful death statutes
are (1) to hold wrongdoers liable for damages upon death of an
injured person, and (2) to compensate relatives of the injured
party for the losses caused by the wrongful act. A holding that
the minor children cannot maintain a wrongful death claim in the
instant case would contravene those fundamental purposes. The
wrongdoers would escape liability and the minor children would
not be compensated for their losses.
¶58 The purposes of the wrongful death statutes have
existed since the law's enactment in 1857. The wrongful death
26
No. 2012AP2402
statute was enacted to correct a perceived injustice at common
law providing no cause of action for wrongful death.36
¶59 As the Prosser & Keeton treatise explains, the common-
law rule had perverse "intolerable" consequences: "The result
was that it was cheaper for the defendant to kill the plaintiff
than to injure him, and that the most grievous of all injuries
left the bereaved family of the victim, who frequently were
destitute, without a remedy."37
36
See Rudiger v. Chicago, St. Paul, Minneapolis & Omaha Ry.
Co., 94 Wis. 191, 68 N.W. 661 (1896):
It was the obvious purpose of this statute to reverse
this rule of law, and to provide that the right of
action should survive, as in case of damages to
property, and, of course, be liable to be prosecuted
by or against an executor. . . . The statute under
consideration was enacted to supply the manifest
defect in the law as it thus existed, and to provide a
remedy against the wrongdoer, if death ensued in
consequence of his negligent or wrongful act (internal
quotation marks omitted).
According to Blackstone, when a husband or father was
injured or killed, the wife or child could not recover. 3
William Blackstone, Commentaries *142-43. As the seminal
English case Baker v. Bolton, Eng. Rep. (1808) 1 Camp. 493; 10
R.R. 734, noted, "in a civil court the death of a human being
could not be complained of as an injury . . . ."
The common-law rule barring claims for wrongful death was
criticized by the second Justice Harlan in Moragne v. States
Marine Lines, Inc., 398 U.S. 375 (1970). The Moragne Court
observed that the common-law rule against wrongful death claims
was criticized as "barbarous" and set forth no "persuasive,
independent justification" for distinguishing between two claims
claiming a breach of the same primary duty to the injured party
simply because the injured party happened to die in one instance
and not the other. Moragne, 398 U.S. at 381-82.
37
Prosser & Keeton on Torts § 127, at 945 (5th ed. 1984).
27
No. 2012AP2402
¶60 In 1846, Parliament passed Lord Campbell's Act, which
sidestepped the common law and created a statutory right of
action for surviving spouses, children, and parents, as well as
other lineal descendants.38
¶61 States too adopted laws recognizing a statutory right
of action for wrongful death.
¶62 In Wisconsin, the wrongful death statute enacted in
1857 was an almost verbatim copy of the New York wrongful death
statute,39 which itself was copied nearly word for word from Lord
Campbell's Act.40
¶63 A New York court explained that the New York statute
extended the principle of liability to a wrongdoer who causes
the death of another and gave the right to damages to
representatives of the deceased.41
¶64 Wisconsin courts have echoed these general principles
as the driving purposes behind the wrongful death statutes.
38
For a discussion of the evolution of the rules governing
wrongful death suits in England and the United States, see Wex
S. Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043
(1965).
39
Compare ch. 71, Laws of 1857, with N.Y. Laws of 1847, ch.
450. See also Whiton v. Chicago & N.W. Ry. Co., 21 Wis. 305,
308 (1867) (noting that New York and Wisconsin employ "the same
statute").
40
See John Fabian Witt, From Loss of Services to Loss of
Support: The Wrongful Death Statutes, the Origins of Modern Tort
Law, and the Making of the Nineteenth-Century Family, 25 Law &
Soc. Inquiry 717, 734 (2000).
41
Baker v. Bailey, 16 Barb. 54, 60, 1852 WL 5345 (N.Y. Gen.
Term. 1852).
28
No. 2012AP2402
First, "[t]he injustices and hardships resulting from the common
law principles in wrongful death cases caused the legislature to
create statutory remedies and liability."42
¶65 Second, "[t]he purpose of the wrongful death statute
is to compensate for the loss of the relational interest
existing between the beneficiaries and the deceased."43
¶66 In 1961 the legislature explicitly protected the
interests of minor children of the deceased "in recognition of
the duty and responsibility of a parent to support minor
children."44
¶67 In contrast to these purposes, the defendants'
interpretation of the wrongful death statutes liberates the
alleged wrongdoer from all liability for the wrongful death in
the instant case. According to the defendants, the liability of
the wrongdoer for the deceased's death in the present case is
zero and no relative of the deceased, including his minor
children, recovers any amount. If we accept the defendants'
reasoning, the wrongdoer in the instant case gets a windfall at
42
Cogger, 35 Wis. 2d at 353.
43
Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549,
560-61, 514 N.W.2d 399 (1994) (internal quotation marks and
quoted source omitted).
44
See ¶¶42-49 and accompanying notes, supra.
29
No. 2012AP2402
the expense of the deceased's surviving dependent minor
children.45
¶68 The defendants' interpretation contravenes the
legislative purposes and produces an unfair, unreasonable, or
absurd result that the legislature could not have intended.
V
¶69 We turn to case law to assist us in interpreting the
phrase "surviving spouse" within the context of the wrongful
death statutes.
¶70 In several cases, the court has employed a literal
interpretation of the phrase "surviving spouse," holding that a
spouse living at the time of the wrongful death is a "surviving
spouse" under the wrongful death statutes.46 In other cases
courts have not read the phrase literally.47 No prior case is
directly on point, but we can derive principles from the case
law that inform our resolution of the instant case.
¶71 We begin with Cogger v. Trudell, 35 Wis. 2d 350, 353,
151 N.W.2d 146 (1967), a lead case governing to whom a recovered
45
This case does not address the survival action of the
deceased's estate. See Wis. Stat. § 895.01(1)(am)7. Survival
actions are different from wrongful death actions. See supra
¶¶45-46.
46
See, e.g., Hanson, 51 Wis. 2d 466; Cogger, 35 Wis. 2d at
354-55; Bowen, 340 Wis. 2d 232.
47
See, e.g., Steinbarth, 144 Wis. 2d at 165; Xiong ex rel.
Edmondson v. Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648
N.W.2d 900.
30
No. 2012AP2402
wrongful death award belongs when a living spouse may not be
able to recover damages and children seek to recover.
¶72 In Cogger, Darla Trudell was killed in a car accident.
She was the passenger; her husband, Joseph Trudell, was the
driver. The two minor Trudell children sued their father, as
well as the driver of the other car.
¶73 The father, being one of the defendants in the
wrongful death suit, could not bring a claim for wrongful death
on his own behalf against himself. The children argued that
Wis. Stat. § 895.04(2), as amended in 1962,48 gave the children
equal status with the surviving spouse, and thus, the fact that
the father was alive did not bar their claim.
¶74 The Cogger court held that Wis. Stat. § 895.04(2)
created a "series of priorities with regard to the ownership of
a cause of action for wrongful death" and that these priorities
were not changed by the 1962 amendment, which added the
provision allowing a court to determine an amount to be set
aside for the minor children from the surviving spouse's
recovery.49
¶75 The Cogger court rejected the children's argument that
the 1962 amendment creating a set-aside for minor children had
put both the surviving spouse and the surviving children in the
first priority class.50 Rather, the court stated: "A careful
48
Ch. 649, Laws of 1961 (enacted Jan. 30, 1962).
49
Cogger, 35 Wis. 2d at 354-55.
50
The Cogger court explained:
31
No. 2012AP2402
reading of the entire section makes it clear that the trial
court . . . must work from the amount recovered by the spouse
who is charged with the support of the minor children."51
¶76 Looking to case law construing the pre-1962 wrongful
death statutes, the court concluded that both before and after
the 1962 amendment, "[t]he beneficiaries and their preferred
status are as follows: First, the spouse; second, a child or
children; third, the parents. Thus the nonexistence of the
preferred beneficiary or beneficiaries is essential to a right
of action by or in behalf of other beneficiaries."52
¶77 Even though one of the two children in Cogger was not
the child of the surviving spouse, the Cogger court assumed that
the surviving spouse had an obligation to support both children
and interpreted the statute as specifically addressing minor
children supported by the surviving spouse.53
The general plan of the statute was not changed. It
was only amended to allow the courts to deal with the
proceeds which would otherwise go to the surviving
spouse in such a way as to protect the dependent
children.
We believe that if the legislature had intended to
create a cause of action in the surviving children in
situations where previously none had existed, it would
have done so in a more direct and clear manner.
Cogger, 35 Wis. 2d at 356-57.
51
Id. at 358
52
Id. at 355 (quoting Cincoski, 4 Wis. 2d at 425).
53
Id. at 357.
32
No. 2012AP2402
¶78 Cogger has been invoked in several cases to bar a
minor child's recovery when the surviving spouse who had the
obligation to support the children was allegedly responsible in
some way for the wrongful death. Perhaps the result of these
cases may be explained by the fact that holding for the children
who were supported by the surviving spouse could indirectly
inure to the benefit of the surviving spouse who caused the
death.
¶79 In Hanson v. Valdivia, 51 Wis. 2d 466, 187 N.W.2d 151
(1971), the minor children of the surviving spouse and the
deceased were barred from bringing suit for the deceased
parent's wrongful death when the surviving parent allegedly
caused the wrongful death.
¶80 The Hanson court relied on Cogger, stating that
"surviving children do not have a cause of action for the
wrongful death of one of their parents when the [deceased] is
survived by his or her spouse, and the fact that the surviving
spouse was responsible for the death does not create a new cause
of action in the children." Hanson, 51 Wis. 2d at 475.
¶81 A second case, Bowen v. American Family Insurance Co.,
2012 WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887, held that even
when the surviving spouse expressly waives the wrongful death
claim, the Cogger rule still applies and the child has no
recovery.
¶82 In Bowen, the deceased died while a passenger in a car
driven by her spouse when the car collided with another car. An
adult child of the deceased and the spouse argued that even if
33
No. 2012AP2402
the Cogger rule applied, the court should look to the spouse's
express disclaimer of his wrongful death claim to pass the claim
on to the adult child.
¶83 The court of appeals declared that the living spouse
was a "surviving spouse," even though the spouse did not wish to
pursue a claim and did not want to be a "surviving spouse."54
¶84 The Cogger decision and its progeny are informative,
but Cogger is not dispositive in the present case. The Cogger
court did not consider the fact situation presented in the
instant case, in which the deceased's spouse is not negligent in
causing the death, has no obligation to support the deceased's
minor children, and (according to the circuit court) cannot
recover damages for wrongful death under any circumstances.55
¶85 A third case that adheres to Cogger and informs our
decision in the present case is Xiong ex rel. Edmondson v.
Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900.
¶86 Mai Xiong died as a passenger in a car driven by Nhia
Xiong. Mai Xiong and Nhia Xiong were the parents of minor and
adult children. The Xiong children brought a wrongful death
action against their father, Nhia Xiong. The circuit court
dismissed the children's action because Nhia Xiong was
responsible for Mai Xiong's death and, pursuant to Cogger, could
not recover in a wrongful death claim. The Xiong children
54
Bowen, 340 Wis. 2d 232, ¶¶13-14.
55
In Cogger, the living spouse apparently may have pursued
his own independent claim against the other driver. Cogger, 35
Wis. 2d at 358.
34
No. 2012AP2402
argued that the parents were not married, and thus, that their
father was not a "surviving spouse."
¶87 On appeal, the court of appeals observed that there
was no evidence of any official marriage of the parents, in
Laos, Thailand, or Wisconsin.56 Nonetheless, the court valued
the unique facts over the literal interpretation of "surviving
spouse" and determined that the word "spouse" in the wrongful
death statute could include a "putative spouse." The court of
appeals assessed the unique facts surrounding the relationship
between the parents and used its "equity powers" to recognize
the relationship as sufficient to establish Nhia Xiong as the
"surviving spouse" for the purposes of the wrongful death
statute.57
¶88 The court of appeals in the Xiong case then applied
Cogger and concluded that a surviving spouse existed and the
children could not recover.58
¶89 Cogger and its progeny at first blush seem to preclude
the children's recovery in the instant case.
¶90 On closer examination, however, Cogger and its progeny
are, as we explained previously, factually distinguishable from
the present case. They therefore are not dispositive. Linda
Force did not contribute in any manner to the injury and death
56
Xiong, 255 Wis. 2d 693, ¶¶14-16. The father did not
submit any evidence contradicting the children's assertion that
the marriage was not valid or recognized at law. Id., ¶18.
57
Xiong, 255 Wis. 2d 693, ¶¶20-21.
58
Id., ¶25.
35
No. 2012AP2402
of the deceased. Rather, the circuit court concluded that she
cannot recover because of her estrangement from the deceased.
Because Linda Force has no support obligations to the deceased's
minor children, she will not benefit if the children recover
damages for wrongful death.
¶91 Furthermore, Xiong buttresses the minor children's
position in the instant case. Xiong teaches that courts
interpret Wis. Stat. § 895.04(2) in line with the unique fact
situation and the purposes of the wrongful death statutes,
rather than in line with formal compliance with laws governing
the formation of a marriage.
¶92 In Xiong, the parties treated each other as husband
and wife, and the court concluded that they should be treated as
married under the wrongful death statutes even though no proof
of a formal marriage at law existed.
¶93 In the instant case, the parties were estranged for
over a decade. Adhering to the teaching of Xiong and examining
the unique relationship of the parties in the present case
dictate that the long-time estranged relationship not be treated
as a marriage and that Linda Force not be considered a
"surviving spouse" under Wis. Stat. § 895.04(2).
¶94 Additional support for the children's position comes
from Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540
(1988).
¶95 Steinbarth, like Xiong, relied on the unique facts
rather than the formality of the legal relationship. Steinbarth
teaches that under unusual circumstances in which the purposes
36
No. 2012AP2402
of the statutes would not be met, the phrase "surviving spouse"
excludes a living spouse and the children may recover damages
under the wrongful death statutes.
¶96 In Steinbarth, the husband allegedly intentionally
shot and killed his wife. The deceased wife's adult children
(the husband's stepchildren) sued the husband for wrongful
death. Using a literal interpretation of the statute rendering
the husband a "surviving spouse," the circuit court and court of
appeals concluded that the adult children's wrongful death claim
was barred under Wis. Stat. § 895.04(2) (1985-86).59 The supreme
court reversed.
¶97 The Steinbarth court was persuaded that statutes
prohibiting an intentional killer from benefiting from the crime
aided in interpreting the phrase "surviving spouse" in the
wrongful death statute.60 The Steinbarth court held "that a
spouse who 'feloniously and intentionally' kills his or her
spouse is not a surviving spouse for purposes of [the wrongful
death statutes], and is treated as having predeceased the
decedent so that the cause of action may accrue to the next
designated beneficiary."61
59
Steinbarth, 144 Wis. 2d at 165. The statute in
Steinbarth is substantially identical to the present statute in
the relevant provisions.
60
Id. at 166-167 (e.g., life insurance, beneficiary under
contract, joint tenancy).
61
Id. at 167-68 (emphasis added).
37
No. 2012AP2402
¶98 The Steinbarth court noted that the unique facts of
the case dictated the outcome. The court reasoned that an
alternative holding would create an "anomalous result" that
"[t]he legislature could not have intended."62
¶99 The Steinbarth court distinguished Cogger. Cogger
involved a surviving spouse who negligently caused the wrongful
death; no basis existed in Cogger for stopping a surviving
spouse who unintentionally but negligently caused the spouse's
death from seeking wrongful death benefits for the loss of the
spouse from a more negligent wrongdoer.63
¶100 On the other hand, in Steinbarth, the "surviving
spouse," a felonious and intentional killer, could not "under
any conceivable circumstance seek recovery under the wrongful
death statute for the loss of the decedent."64 Unlike Cogger and
its progeny, the surviving spouse in Steinbarth had no claim
against a third-party wrongdoer or any ability to recover for
wrongful death of the deceased.
¶101 The instant case does not align precisely with Cogger,
Hanson, Bowen, Xiong, or Steinbarth. Nevertheless, these cases
support the conclusion that under the unique facts of the
instant case, the claim of the minor children should prevail.
¶102 The case law demonstrates that the meaning of the
phrase "surviving spouse" has been elucidated by scrutinizing
62
Id. at 167.
63
Id. at 168.
64
Id. at 169.
38
No. 2012AP2402
unique fact situations to define "surviving spouse" in accord
with the legislative purposes of the wrongful death statutes,
rather than considering only the literal meaning of the phrase
"surviving spouse." Linda Force, like the spouse in Steinbarth,
is barred from recovering for wrongful death under any
circumstances, according to the circuit court. To hold against
the children here would allow a wrongdoer to escape liability
and deprive relatives of recovery for their loss, simply because
of an unusual fact scenario.
¶103 Courts in other jurisdictions that have wrongful death
laws similar to Wisconsin's placing children in a secondary
beneficiary class,65 when confronted with unique facts, have held
that the secondary beneficiaries have a claim even when the
primary beneficiary may exist. Courts have allowed ameliorating
common-law principles to apply to fill in a legislature's
unintended gaps in a wrongful death statute.
¶104 The case Evans v. Atlantic Cement Co., 272 So. 2d 538,
541 (Fla. Ct. App. 1973), is a typical example of a court
looking to the unique factual circumstances to fulfill the
underlying purpose of the wrongful death statute. In Evans, the
court held that a woman who lived with the deceased for nine-
and-a-half years and had children with him, and for whom the
decedent provided support, could maintain an action for wrongful
65
See Stuart M. Speiser & James E. Rooks, Jr., Recovery for
Wrongful Death § 3:3 & n.2 (4th ed. 2005) (noting that in some
jurisdictions children are among the primary beneficiary class,
while in others, listed in the footnote, children are designated
secondary beneficiaries behind the surviving spouse).
39
No. 2012AP2402
death although she was not literally a "surviving spouse" of the
deceased. The deceased was survived by a surviving spouse and
another child from a different marriage who, under Florida law,
could maintain a wrongful death action.
¶105 The court reasoned that it had to construe the statute
in the context of the unique facts of the case in order to avoid
a result contrary to the purposes of the wrongful death statute:
[T]he preference given by statute to a spouse over a
child presupposes the existence of a family, including
a parent-child relationship, in the survivors. When
the statutes are examined entire, the conclusion
cannot be reasonably reached that these class
priorities were intended by the legislature to be
applied where the fundamental family relationships
have been legally destroyed. . . . It is unreasonable
to conclude the legislature intended that dependent
children or other family members be left without
support or remedy, in favor of strangers to them.
. . . .
[W]e believe the literal wording of the statute [is]
applicable where fundamental family relationships
still obtain. However, where . . . the family
relationships have ruptured or divided . . . it is
proper to allow the additional classes to intervene.66
¶106 Other state courts have permitted secondary
beneficiaries to recover damages when the deceased's spouse is
still alive. They have done so on a variety of grounds.
¶107 For example, in Foster v. Jeffers, 813 S.W.2d 449
(Tenn. App. 1991), the Tennessee court of appeals held that when
a spouse still living after the death of the deceased
66
Evans v. Atlantic Cement Co., 272 So. 2d 538, 541 (Fla.
Ct. App. 1973).
40
No. 2012AP2402
affirmatively waives his or her claim, the secondary
beneficiaries (in that case, the deceased's nephews) can collect
the proceeds from the wrongful death action.67 The Foster court
reasoned that a secondary beneficiary, who would otherwise be
barred from a claim by the existence of a surviving spouse, must
be able to pursue a claim "to keep alive the decedent's cause of
action" and to achieve the statutory purpose of ending the
regime in which "it was more economical to kill someone than to
merely inflict a nonfatal injury."68 Although Wisconsin courts
have explicitly rejected this waiver approach to the wrongful
death statute,69 Foster is instructive, standing for the
proposition that sister states with hierarchical beneficiary
structures permit secondary beneficiaries to collect even when
primary beneficiaries are still alive, in order to fulfill the
purposes of the statute in unusual or unique fact situations.
¶108 Georgia courts have similarly held that in some
circumstances, secondary beneficiaries can recover damages when
the deceased's spouse is still alive. In Brown v. Liberty Oil &
Refining Corp., 403 S.E.2d 806 (Ga. 1991), the Georgia Supreme
Court held that although the deceased's spouse was still alive
and prior interpretations of the statute had barred children's
67
Foster v. Jeffers, 813 S.W.2d 449 (Tenn. App. 1991); but
see Bowen, 340 Wis. 2d 232, ¶¶13-15 (rejecting this waiver rule
in Wisconsin).
68
Foster, 813 S.W.2d at 452.
69
Bowen, 340 Wis. 2d 232, ¶¶13-15 (rejecting this waiver
rule in Wisconsin).
41
No. 2012AP2402
wrongful death claims when there was a surviving spouse,70 in the
unique fact scenario of the case in which the surviving spouse
abandoned the children and could not be located, "the factual
circumstances of this case demand the exercise of [equity]
powers to preserve the rights of the minor children."71 The
Georgia courts have subsequently applied this holding to other
unusual fact scenarios to hold that secondary beneficiary
children can recover damages for wrongful death even when the
deceased's spouse is still alive.72
¶109 Although these cases are not dispositive of the
instant case and do not present a unified theory, they are
informative in teaching that state courts have recognized that
secondary wrongful death beneficiaries can bring claims in
unique fact scenarios in which barring such claims would
undermine or contradict the wrongful death statutes' purposes of
punishing wrongdoers and compensating the deceased's relatives.
¶110 In sum, Wisconsin case law and case law from other
jurisdictions supports the children's claim in the present case.
VI
¶111 Finally, we examine the statutory history. We have
explored statutory history previously in our discussion of the
text, the legislative purposes, and the case law. The statutory
70
See Mack v. Moore, 345 S.E.2d 338 (Ga. 1986).
71
Brown v. Liberty Oil & Ref. Corp., 403 S.E.2d 806, 808
(Ga. 1991).
72
Emory Univ. v. Dorsey, 429 S.E.2d 307 (Ga. App. 1993).
42
No. 2012AP2402
history shows that the legislature has repeatedly amended the
classes of potential beneficiaries. It appears from the
statutory history that when a court excluded a class from being
a beneficiary, often the legislature would amend the wrongful
death statute to include the class.73
¶112 For our purposes, amendments in 1961 and 1962 are key
in the statutory history, because they directly addressed the
right of minor children to recover for wrongful death.
¶113 Before 1961, the statute made the spouse the primary
beneficiary and the children secondary beneficiaries as lineal
heirs of the deceased:
The amount recovered shall belong and be paid to the
spouse of the deceased; if no spouse survives, to the
deceased's lineal heirs as determined by section
237.01; if no lineal heirs survive, to the deceased's
brothers and sisters. If any such relative dies
before judgment in the action, the relative next in
order shall be entitled to recover for the wrongful
death. A surviving nonresident alien wife and minor
children shall be entitled to the benefits of this
section.
Wis. Stat. § 331.04(2) (1959-60).
¶114 The 1961 amendment switched the order of the
beneficiaries, placing the children as primary beneficiaries and
the surviving spouse as a secondary beneficiary. If there were
73
See, e.g., chs. 164, 581, Laws of 1907 (permitting
recovery for brothers and sisters, superseding Brown, 102 Wis.
137); ch. 226, Laws of 1911 (permitting nonresident aliens to
recover, superseding McMillan, 115 Wis. 332); § 1, ch. 263, Laws
of 1931 (allowing beneficiaries in the hierarchy to recover if a
higher beneficiary died, superseding Woodward, 23 Wis. 400).
43
No. 2012AP2402
no minor children, the surviving spouse recovered. The
legislature amended the statute in 1961 to read as follows:
If the deceased leaves surviving a spouse, and minor
children with whose support he was legally charged,
said minor children shall be entitled to an amount as
fixed by the circuit court . . . ; said benefits to be
used for the support of such child or children during
their minority, and after the youngest child reaches
21 years of age, the balance, if any, shall be divided
equally among said children surviving. The remainder
of the amount recovered or the amount recovered if
there are no such surviving minor children shall
belong and be paid to the spouse of the
deceased . . . .
Ch. 285, Laws of 1961 (enacted July 27, 1961).
¶115 The bill drafting file does not reveal the backstory
of this amendment, but the language makes clear that the
legislature intended to favor minor children whom the deceased
was legally charged to support over a surviving spouse.
¶116 A 1962 amendment reveals the legislature's second
thoughts about the newly adopted 1961 hierarchy. The bill
drafting file of the 1962 amendment also does not reveal the
backstory of this amendment.
¶117 The 1962 amendment, adopted about six months after the
1961 amendment, returned the surviving spouse to primary
beneficiary status but protected the minor children by creating
a set-aside from the surviving spouse's recovery. This
amendment supports the defendant's interpretation of the
wrongful death statute that the children are not in the primary
class of beneficiaries.
¶118 The 1962 amendment reads as follows:
44
No. 2012AP2402
If the deceased leaves surviving a spouse, and minor
children under 18 years of age with whose support he
was legally charged, the court before whom an action
is pending, or if no action is pending, any court of
record, in recognition of the duty and responsibility
of a parent to support his minor children, shall
determine the amount, if any, to be set aside for the
protection of such children after considering the age
of such children, the amount involved, the capacity
and integrity of the surviving spouse, and any other
facts or information it may have or receive, and such
amount may be impressed by creation of an appropriate
lien in favor of such children or otherwise protected
as circumstances may warrant, but such amount shall
not be in excess of 50 per cent of the net amount
received after deduction of costs of collection. If
there are no such surviving minor children, the amount
recovered shall belong and be paid to the spouse of
the deceased . . . .
Ch. 649, Laws of 1961 (enacted Jan. 30, 1962).
¶119 This 1962 amendment gave the courts discretion to
consider how much the set-aside for the minor children would be,
considering "the age of such children, the amount involved, the
capacity and integrity of the surviving spouse, and any other
facts or information [they] may have or receive." The
legislature made clear that the statute was enacted to protect
the spouse but also to recognize "the duty and responsibility of
a parent to support his minor children."
¶120 Other than the 1961 and 1962 amendments, in recent
years the legislature has left the wrongful death statutes
largely intact in the wake of cases depriving or granting the
children recovery in unusual fact situations.
¶121 Cogger established that a surviving spouse, even one
who was a wrongdoer in causing the deceased's death, remained a
primary beneficiary despite cutting off the claims of the minor
45
No. 2012AP2402
children.74 After Cogger, the legislature took no action to
amend the statute.
¶122 Steinbarth established that a living spouse who
intentionally kills the deceased cannot be a surviving spouse
under the wrongful death statute, and the children can recover.75
Again, the legislature took no action to amend the statute.
¶123 According to the defendants, their position is
supported by the legislature's failure to revise Wis. Stat.
§ 895.04(2) after Cogger and other cases. These cases barred
secondary beneficiaries from recovering under certain
circumstances.
¶124 We are not persuaded that the legislative inaction
supports the defendants. Legislative inaction is ordinarily
weak evidence of legislative acquiescence in or countenance of a
judicial or executive branch interpretation.76
¶125 Rather, the statutory history, including the 1961 and
1962 amendments, teaches that the legislature has protected the
interests of both the surviving spouse and the minor children
74
Cogger, 35 Wis. 2d at 354-55.
75
Steinbarth, 144 Wis. 2d at 165-67.
76
See Green Bay Packaging, Inc. v. DILHR, 72 Wis. 2d 26,
36, 240 N.W.2d 422 (1976) ("[L]egislative inaction . . . has
been called 'a week [sic] reed upon which to lean' and a 'poor
beacon' to follow in construing a statute" (quoted source
omitted)); Milwaukee Journal Sentinel v. City of Milwaukee, 2012
WI 65, ¶43 n.21, 341 Wis. 2d 607, 815 N.W.2d 367 (noting that
"cases have expressed skepticism about the meaning of
legislative inaction") (citing Wenke v. Gehl Co., 2004 WI 103,
¶32, 274 Wis. 2d 220, 682 N.W.2d 405).
46
No. 2012AP2402
and that the legislature has left interpretation of the phrase
"surviving spouse" to the courts when unanticipated fact
scenarios have emerged.
¶126 In the instant case, we must consider, as the
statutory history instructs, the interests of both the surviving
spouse and the children based on the facts at hand.
* * * *
¶127 For the reasons set forth, we interpret the phrase
"surviving spouse" in the present case as not including Linda
Force, the deceased's estranged spouse who, as a result of the
circuit court's dismissal of her wrongful death claim (which was
not appealed), is barred from recovery under Wis. Stat.
§§ 895.03 and 895.04(2). If Linda Force is not a "surviving
spouse" under the statute, the parties do not dispute that the
minor children have a cognizable claim as lineal heirs. As
lineal heirs of the deceased, the children would be first in
line for any recovery for the wrongful death of their father.
¶128 We conclude that the circuit court erred in granting
the defendants summary judgment and erred in dismissing the
minor children's causes of action against the defendants for
wrongful death. The minor children in the present case have a
cause of action against the defendants for wrongful death as if
Linda Force were not alive at the death of the deceased.77
77
In light of our holding, we need not and do not address
the children's equal protection constitutional claim that if
Wis. Stat. § 895.04(2) bars their claim absent recovery by the
surviving spouse, the statute is unconstitutional.
47
No. 2012AP2402
¶129 Accordingly, we reverse the judgment of the circuit
court against the children and in favor of the defendants and
remand the matter to the circuit court for further proceedings
not inconsistent with this opinion.
By the Court.——The judgment and order of the circuit court
are reversed and the cause is remanded to the circuit court.
48
No. 2012AP2402.dtp
¶130 DAVID T. PROSSER, J. (concurring). This is a case
of statutory interpretation. The seminal case on statutory
interpretation in recent years is State ex rel. Kalal v. Circuit
Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681
N.W.2d 110.
¶131 In Kalal, the court emphasized the importance of
statutory text when it embraced the principle that a court's
role is to determine what a statute means rather than determine
what the legislature intended. Id., ¶44. The court said:
It is . . . a solemn obligation of the judiciary to
faithfully give effect to the laws enacted by the
legislature, and to do so requires a determination of
statutory meaning. Judicial deference to the policy
choices enacted into law by the legislature requires
that statutory interpretation focus primarily on the
language of the statute. We assume that the
legislature's intent is expressed in the statutory
language. Extrinsic evidence of legislative intent
may become relevant to statutory interpretation in
some circumstances, but is not the primary focus of
inquiry. It is the enacted law, not the unenacted
intent, that is binding on the public. Therefore, the
purpose of statutory interpretation is to determine
what the statute means so that it may be given its
full, proper, and intended effect.
Id.
¶132 The court explained that statutory interpretation
begins with the language of the statute. Id., ¶45. "Statutory
language is given its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are
given their technical or special definitional meaning." Id.
(citations omitted). Then the court added:
Context is important to meaning. So, too, is the
structure of the statute in which the operative
language appears. Therefore, statutory language is
1
No. 2012AP2402.dtp
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 (emphasis added) (citations omitted).
¶133 In my view, this case requires the court to confront
head-on statutory language that, if applied literally, would
produce an absurd or unreasonable result.
¶134 Historically, courts have tried to avoid absurd or
unreasonable results. The year before Kalal, this court said in
State v. Hamilton, 2003 WI 50, ¶38, 261 Wis. 2d 458, 661
N.W.2d 832: "The court should not search for ambiguity. It
should enforce a clear statute." However, "One of the few
exceptions to this sound principle is that the court will seek
to avoid a truly absurd or unreasonable result." Id., ¶39
(citing State v. Burkman, 96 Wis. 2d 630, 642, 292 N.W.2d 641
(1980); State v. Mendoza, 96 Wis. 2d 106, 115, 291 N.W.2d 478
(1980); Kayden Indus., Inc. v. Murphy, 34 Wis. 2d 718, 732, 150
N.W.2d 447 (1967)).
¶135 There are innumerable cases in which Wisconsin courts
have repeated or actually invoked this exception.
¶136 In Worachek v. Stephenson Town School District, 270
Wis. 116, 124, 70 N.W.2d 657 (1955), the court stated: "This
court has repeatedly held that a statute should not be construed
so as to work an absurd result even when the language seems
clear and unambiguous." Id. (citing Connell v. Luck, 264 Wis.
282, 58 N.W.2d 633 (1953); Laridaen v. Ry. Express Agency, Inc.,
2
No. 2012AP2402.dtp
259 Wis. 178, 47 N.W.2d 727 (1951); Pfingsten v. Pfingsten, 164
Wis. 308, 159 N.W. 921 (1916)).
¶137 In Isaksen v. Chesapeake Instrument Corp., 19
Wis. 2d 282, 289-90, 120 N.W.2d 151 (1963), the court stated:
We are unable to conceive of any reason of policy
which might lead the legislature to deny to
shareholders so situated the remedy it had provided
for others, and Chesapeake has not suggested any.
. . . .
"It is always presumed, in regard to a statute, that
no absurd or unreasonable result was intended by the
legislature. Hence if, viewing a statute from the
standpoint of the literal sense of its language, it is
unreasonable or absurd, an obscurity of meaning
exists, calling for judicial construction."
Id. (some citations omitted) (quoting Rice v. Ashland Cnty., 108
Wis. 189, 192, 84 N.W. 189 (1900)).
¶138 In Kayden Industries, Inc. v. Murphy, 34 Wis. 2d 718,
732, 150 N.W.2d 447 (1967), the court stated:
Where there is no ambiguity in the literal terms of
the provision under consideration there is no room for
judicial construction. . . . The only general
exception to the above rule[] . . . is that the court
may construe a provision whose meaning is clear if a
literal application of the provision would lead to an
absurd or unreasonable result.
Id. (citations omitted).
¶139 In Alberte v. Anew Health Care Services, Inc., 2000 WI
7, ¶10, 232 Wis. 2d 587, 605 N.W.2d 515, the court stated:
While it is true that statutory interpretation
begins with the language of the statute, it is also
well established that courts must not look at a
single, isolated sentence or portion of a sentence,
but at the role of the relevant language in the entire
statute. Moreover, courts have "'some "scope for
adopting a restricted rather than a literal or usual
3
No. 2012AP2402.dtp
meaning of its words where acceptance of that
meaning . . . would thwart the obvious purpose of the
statute."'" When a literal interpretation produces
absurd or unreasonable results, or results that are
clearly at odds with the legislature's intent, "[o]ur
task is to give some alternative meaning" to the
words.
Id. (brackets in original) (citations omitted).
¶140 In Teschendorf v. State Farm Insurance Companies, 2006
WI 89, ¶15, 293 Wis. 2d 123, 717 N.W.2d 258, the court stated:
[I]f the meaning of the statute appears to be plain
but that meaning produces absurd results, we may also
consult legislative history. The purpose in this
situation is to verify that the legislature did not
intend these unreasonable or unthinkable results.
Because our purpose in these situations is grounded in
open disbelief of what a statute appears to require,
we are bound to limit our off-statute investigations
to obvious aberrations.
Id. (internal citations and explanatory parentheticals omitted).
The court went on, "The reason to doubt a literal meaning of
[the statute] is that it clashes with related statutes." Id.,
¶24.
¶141 In Gasper v. Parbs, 2001 WI App 259, ¶8, 249
Wis. 2d 106, 637 N.W.2d 399, the court of appeals stated:
[T]he plain language of a statute should not be
construed in a manner that leads to absurd or
unreasonable results. State v. Yellow Freight Sys.,
Inc., 101 Wis. 2d 142, 153, 303 N.W.2d 834 (1981). We
presume that "the legislature intends for a statute to
be interpreted in a manner that advances the purposes
of the statute." Verdoljak v. Mosinee Paper Corp.,
200 Wis. 2d 624, 635, 547 N.W.2d 602 (1996).
Id.
¶142 These principles were undoubtedly applied in
Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 (1988),
where the court said: "A court will not ordinarily engage in
4
No. 2012AP2402.dtp
statutory interpretation unless a statute is ambiguous. A
statute may be ambiguous and require judicial construction if
the literal application of the language would lead to an absurd
result." Id. at 165 (citing DeMars v. LaPour, 123 Wis. 2d 366,
370, 366 N.W.2d 891 (1985)). Steinbarth, of course, interpreted
the same statute now before the court.
¶143 Courts try to avoid absurd results, but courts are not
eager to disregard the seemingly clear language of a statute.
This reluctance is salutary because it reflects the deference
and respect of the judiciary for the policy choices of other
branches of government.
¶144 For judges, there is plenty of solid ground between
judicial activism and judicial paralysis. Our precedent
provides guidance on when judges should act and when they should
not.
¶145 Absurd results are much more than undesirable results.
Absurd results are aberrations that clash with the manifest
purpose of a statute or related statutes (evidenced by statutory
language) and cannot be explained as a rational exception to the
statutory scheme. Absurd results are usually unexpected. They
are different from harsh consequences because they are seldom
the fault of an adversely affected party. Instead, they almost
always result from circumstances beyond the party's control.
Absurd results produce hardship or unfairness that is quickly
recognized and cannot be ignored.
5
No. 2012AP2402.dtp
¶146 This case satisfies these standards, as is documented
in the majority opinion. We ought to act but also implore the
legislature to rewrite the statute.
¶147 For the foregoing reasons, I respectfully concur.
6
No. 2012AP2402.pdr
¶148 PATIENCE DRAKE ROGGENSACK, J. (dissenting). While
the majority opinion reaches an appealing result as it permits
the minor children of Billy Joe Force to maintain a claim for
his wrongful death, I cannot join the opinion. In my view, the
majority opinion's conclusion that the statutory term "surviving
spouse" does not mean a spouse who has survived the death of her
husband because she was estranged from her husband at his death
is not based on statutory construction and will create
considerable mischief in the future. Accordingly, I would
affirm the circuit court, and I respectfully dissent.
I. BACKGROUND
¶149 The underlying facts are not disputed or complicated.
On December 12, 2008, Billy Joe Force died as a result of a
motor vehicle accident. At the time of his death, Billy was
married to Linda Force. However, Billy and Linda had been
separated since 1996, and Billy had not provided any support to
Linda since 1997.
¶150 Billy and Linda had no children of their marriage.
However, at his death, Billy had three minor children, born of
two women, neither of whom he had married. It is these three
children who seek to maintain this wrongful death action against
Jeffrey Brown, the driver of the other vehicle in the accident;
his insurer, American Family Mutual Insurance Company; and
1
No. 2012AP2402.pdr
Regent Insurance Company, the insurer of Billy's employer, for
whom Billy was driving at the time of the accident.1
¶151 The circuit court granted summary judgment of
dismissal, concluding that: (1) Linda survived Billy; (2) the
children had no independent cause of action under Wis. Stat.
§ 895.04(2); (3) Linda had no compensable damages; and (4)
because Linda could not recover, no offset was available for the
children. The court of appeals certified the issue of whether
children have an independent claim for relief under § 895.04
when there is a surviving spouse, who has been estranged from
the decedent for more than ten years and could not recover,
thereby precluding any set aside for the children.2 We accepted
certification.
II. DISCUSSION
A. Standard of Review
¶152 We are asked to construe the term "surviving spouse"
in Wis. Stat. § 895.04(2). Statutory interpretation presents a
question of law for our independent review; however, we benefit
from the circuit court's discussion. Spiegelberg v. State, 2006
WI 75, ¶8, 291 Wis. 2d 601, 717 N.W.2d 641. When we construe a
statute, we also consider our past interpretations of that
1
Because Billy was driving for his employer at the time of
the accident, the employer could bring a third party liability
action to recover money the employer may have paid on Billy's
behalf. See Wis. Stat. § 102.29; Adams v. Northland Equipment
Co., 2014 WI 79, ¶4, __ Wis. 2d __, __ N.W.2d __. Section
102.29 claims are mentioned in Wis. Stat. § 895.04(2).
2
Force v. Am. Family Mut. Ins. Co., No. 2012AP2402,
unpublished slip op. (Wis. Ct. App. July 3, 2013).
2
No. 2012AP2402.pdr
statute. Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶49, 327
Wis. 2d 572, 786 N.W.2d 177.
B. Wisconsin Stat. § 895.04(2)
¶153 We are not writing on a clean slate as we interpret
Wis. Stat. § 895.04(2) in the case now before us. As the court
of appeals correctly pointed out, our interpretation of Cogger
v. Trudell, 35 Wis. 2d 350, 151 N.W.2d 146 (1967), precludes
recovery for children when there is a surviving spouse who
cannot recover. Courts have followed Cogger with only one
exception since 1967, Steinbarth v. Johannes, 144 Wis. 2d 159,
423 N.W.2d 540 (1988).
¶154 In Steinbarth, the husband feloniously and
intentionally killed his wife, whose death was the basis for the
children's wrongful death claim. During our consideration of
the children's claim, we reviewed Wis. Stat. § 852.01(2m) (1985-
86), which precluded one who feloniously and intentionally
killed a decedent from recovering as an heir of the decedent.
Id. at 166. We noted that § 852.01(2m) (1985-86) treated the
killer as having predeceased the decedent.3 Id. We reasoned
that the husband in Steinbarth should be treated consistent with
3
Wisconsin Stat. § 852.01(2m) (1985-86) provided:
Requirement that heir not have intentionally
killed the deceased. (a) If any person who would
otherwise be an heir under sub. (1) has feloniously
and intentionally killed the decedent, the net estate
not disposed of by will passes as if the killer had
predeceased the decedent.
3
No. 2012AP2402.pdr
the statutory directive of § 852.01(2m) (1985-86).4 In order to
do so, we concluded that a husband who feloniously and
intentionally killed his wife will be treated for purposes of a
wrongful death claim as though he had predeceased his wife.
Accordingly, there would be no surviving spouse under Wis. Stat.
§ 895.04 and the children could maintain an action for wrongful
death. Id. at 167.
¶155 In Steinbarth, we distinguished Cogger by noting that
the spouse's death in Cogger was based on negligence and in
Steinbarth, it was based on intent to kill. We also noted a
specific legislative directive about the status of one who kills
his spouse for purposes of claims made relative to the death of
the spouse. Neither distinction is present here. Linda had
nothing to do with Billy's death, and there is no statutory
directive, other than the wrongful death statute, Wis. Stat.
§ 895.04, that applies here.
¶156 If I were writing for the majority, I would affirm the
circuit court and fully describe how unfair the current statute
is to children who have suffered significant damages due to the
wrongful death of a parent, but who have no claim when the
surviving spouse has no recovery. By the 1961 amendments to
Wis. Stat. § 895.04(2), the legislature made an attempt to
independently protect children who suffered a loss because of
4
Wisconsin Stat. § 852.01(2m) was revised subsequent to
Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 (1988),
and Wis. Stat. § 854.14 further addresses homicide and rights of
inheritance. The revisions are not relevant to our decision in
Steinbarth or to my dissent.
4
No. 2012AP2402.pdr
the wrongful death of a parent, but more is needed today to
finish what the legislature then began.
¶157 Instead of acknowledging that a claim for wrongful
death is purely statutory and that at common law no such claim
existed, Bowen v. American Family Insurance Co., 2012 WI App 29,
¶10, 340 Wis. 2d 232, 811 N.W.2d 887, the majority opinion
pretends that it is construing Wis. Stat. § 895.04(2) and
creates a new claim.5 It interprets the statutory phrase,
"surviving spouse," as not including Linda, Billy's spouse who
survived him. The majority justifies the result it reaches by
relating that Linda and Billy have been estranged for ten years
and that Linda could not prove wrongful death damages on her own
behalf.6
¶158 While the majority opinion's result is appealing, I
cannot join the majority opinion's interpretation of the Wis.
Stat. § 895.04(2) term "surviving spouse." The methods employed
to interpret § 895.04(2) comport with none of the legal
principles that guide statutory interpretation. See, e.g.,
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶¶38-46, 271 Wis. 2d 633, 681 N.W.2d 110. Saying that
§ 895.04(2) means whatever the majority wants it to mean will
cause confusion and repetitive litigation.
¶159 For example, is an estrangement of five years
sufficient time to cause a spouse who survives the decedent to
no longer be a "surviving spouse" under the majority opinion's
5
Majority op., ¶¶125-26.
6
Majority op., ¶5.
5
No. 2012AP2402.pdr
construction of Wis. Stat. § 893.04(2)? Is two years long
enough, if there has been absolutely no communication between
the spouses? Furthermore, how does the majority opinion line up
with spousal intestate succession under Wis. Stat. ch. 852,
which says nothing about a spouse's rights being limited due to
the husband and wife being separated? See Wis. Stat. § 852.01.
¶160 Claims of the type now before us under Wis. Stat.
§ 895.04(2) are commonly brought and commonly denied because of
our decision in Cogger.7 We would assist children who attempt to
bring wrongful death claims in the future by pointing out the
unfairness the current statute creates and asking the
legislature to consider revising § 895.04(2), rather than
creating a common law fix for the children in the present case
and leaving all similarly situated children without a claim due
to our interpretation of § 895.04(2) in Cogger.
7
See Bowen v. Am. Family Ins. Co., 2012 WI App 29, 340
Wis. 2d 232, 811 N.W.2d 887 (father was a defendant and could
not recover due to his contributory negligence in the accident
that killed his wife; therefore, children had no claim); Xiong
v. Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900
(father drove vehicle in which mother was passenger who died
after an accident; children had no claim); Anderson v.
Westchester Fire Ins. Co., No. 94-1211-FT, unpublished slip op.
(Wis. Ct. App. Nov. 29, 1994) (concluding that because
stepmother survived the death of child's parent, child had no
claim under Wis. Stat. § 895.04); Maki v. Kahler, No. 83-773,
unpublished slip op. (Wis. Ct. App. Mar. 27, 1984) (concluding
that children had no claim based on Cogger). Cogger has been
cited 25 times in cases noted in Westlaw's database and probably
many times that number in circuit court decisions from which no
appeal was taken.
6
No. 2012AP2402.pdr
III. CONCLUSION
¶161 While the majority opinion reaches an appealing result
as it permits the minor children of Billy Joe Force to maintain
a claim for his wrongful death, I cannot join the opinion. In
my view, the majority opinion's conclusion that the statutory
term "surviving spouse" does not mean a spouse who has survived
the death of her husband because she was estranged from her
husband at his death is not based on statutory construction and
will create considerable mischief in the future.
¶162 Accordingly, I would affirm the court of appeals and I
respectfully dissent.
¶163 I am authorized to state that Justices ANNETTE
KINGSLAND ZIEGLER and MICHAEL GABLEMAN join this dissent.
7
No. 2012AP2402.akz
¶164 ANNETTE KINGSLAND ZIEGLER, J. (dissent). I join
Justice Roggensack's dissent, but write separately to clarify
that, had the majority been able to link the Force children's
ability to recover with the language of the statute, and
reconcile that text with our prior case law, see, e.g., Cogger
v. Trudell, 35 Wis. 2d 350, 353, 151 N.W.2d 146 (1967), I would
have joined the majority. The majority was unable, however, to
find a satisfactory, textual way to construe Wis. Stat.
§ 895.04(2) so to allow the Force children to recover in a
wrongful death action. As a result, I am compelled to join
Justice Roggensack's dissent.
¶165 Justice Prosser concludes that the application of the
statutory language produces an "absurd" result. See Justice
Prosser's concurrence, ¶133. An unpalatable result is not the
same as an absurd result. We are to look to the text of the
statute to determine whether relief is afforded to the
litigants. "In construing or interpreting a statute the court
is not at liberty to disregard the plain, clear words of the
statute." State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (citation
omitted). It is not the role of the courts to "save" the
legislative branch from the consequences of the laws it passes,
or to create a remedy when the plain language of the statute
does not afford relief.
¶166 As a practical matter, the legislature cannot be
expected to meaningfully reconsider legislation if the court
usurps the role of the legislature in order to create a remedy
1
No. 2012AP2402.akz
where none otherwise exists. The long and complex history of
the wrongful death statute provides support for the notion that
the legislature should consider revision to provide relief when
it should be due. See majority op., ¶¶69-102 (discussing
Steinbarth v. Johannes, 144 Wis. 2d 159, 423 Wis. 2d 540 (1988);
Hanson v. Valdivia, 51 Wis. 2d 466, 187 N.W.2d 151 (1971);
Cogger, 35 Wis. 2d 350; Bowen v. American Family Ins. Co., 2012
WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887; Xiong v. Xiong, 2002
WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900). The majority's
apparent difficulty in distinguishing these cases provides an
apt illustration of the problem. The court should not avoid the
plain language of a statute in order to prevent unpleasant
results. In my view, legislative action is required.
¶167 For the foregoing reasons, I dissent.
2
No. 2012AP2402.akz
1
Hailey Marie-Joe Force v. American Family Mutual Insurance Company
Combined Opinion