Teschendorf v. State Farm Ins. Cos.

FINE, J.

¶ 17. 0dissenting). I respectfully dissent.

¶ 18. First, this action seeks to recover on an automobile policy issued to and paid for by Scott W Shira, the adult son of the plaintiffs, Bernard J. and Maria Shira. Scott Shira's parents are not insureds under his insurance policy. According to the Majority, their entitlement to the uninsured-motorist funds generated by the policy stems from their having "filed a wrongful death action under Wis. Stat. § 895.04." Majority, ¶ 2 (footnote omitted). I do not, however, understand how this can be because the accident happened in Minnesota and Wis. Stat. § 895.03 only permits wrongful-death actions to be brought "for a death *364caused in this state." Although the actual death need not occur in Wisconsin, there must be some Wisconsin "act or omission" that "was a substantial factor in causing" the death for § 895.03 to apply. Tillett v. J.I. Case Co., 756 F.2d 591, 595 (7th Cir. 1985), disapproved of on other grounds, Boyle v. United Techs. Corp., 487 U.S. 500, 510 (1988). Although I recognize that concepts of "standing" in Wisconsin are somewhat fluid, see Wisconsin Bankers Ass'n v. Mutual Sav. & Loan, 96 Wis. 2d 438, 444-445 n.1, 291 N.W.2d 869, 873 n.1 (1980) (objections to standing may be waived), the wrongful-death remedy is "a matter of legislative grace," Stolper v. Owens-Corning Fiberglas Corp., 178 Wis. 2d 747, 752, 505 N.W.2d 157, 159 (Ct. App. 1993). I do not understand, and neither the parties nor the Majority explains, why this case is here.

¶ 19. Second, as the Majority recognizes, neither Scott Shira's insurance policy nor the operative statutes are ambiguous. Scott Shira's insurance policy reduces the insurance company's liability under its coverage for uninsured-motorist coverage by "[a] payment made ... because of bodily injury under any workers' compensation or disability benefits law." (Bolding omitted.) This clause is permitted by Wis. Stat. § 632.32(5)(i)2, quoted by the Majority in ¶ 6.

¶ 20. Here, there was a "payment" encompassed by the uninsured-motorist coverage clause in Scott Shira's policy. That the payment was made to the state fund rather than to either Scott Shira's estate or to his parents is immaterial. Indeed, the trial court's decision, which the Majority reverses, is consistent with Wisconsin's worker's compensation law, which, as the Majority recognizes, does not permit payment of worker's compensation benefits to the parents of adult children, unless those parents relied on the adult child *365for their support. See Wis. Stat. §§ 102.46-102.49, 102.51. There is no evidence in the summary-judgment record that Mr. and Mrs. Shira received any support from Scott Shira or anticipated doing so.

¶ 21. In my view, the Majority's quotations from fleeting short-hand references in some cases to an "insured" cannot override the unambiguous statutory language, especially when the issue for which the Majority cites those fleeting short-hand references was neither raised nor decided — or even considered — in those decisions. Accordingly, those fleeting short-hand references were hardly "judicial acts" reflecting the discussion and decision of "a question germane to, though not necessarily decisive of, the controversy" then before the courts issuing those decisions. See Chase v. American Cartage Co., 176 Wis. 235, 238, 186 N.W. 598, 599 (1922) (discussing exceptions from traditional notions of dictum)-, see also State v. Leitner, 2002 WI 77, ¶ 22 n.16, 253 Wis. 2d 449, 464 n.16, 646 N.W.2d 341, 348 n.16 (discussing exceptions from traditional notions of dictum).

¶ 22. Based on the foregoing, I would affirm.