¶ 88. (dissenting in part, concurring in part). There are undoubtedly statute of limitations cases where the crucial question of the date the claim accrued is a close question that requires a court to make a difficult decision. A wrongful death case, however, should not be such a case.
¶ 89. The approach adopted by the majority in this case — that a three-year statute of limitations on a wrongful death claim somehow runs before three years have elapsed after the date of death1 — unfortunately may foster a public perception that common sense sometimes is lacking in court decisions.
¶ 90. Because long-standing precedent in Wisconsin establishes the date of death as the date on which a *595wrongful death claim accrues, and because the majority rule creates an unnecessary exception to this sensible approach, I respectfully dissent from that portion of the majority opinion.
¶ 91. I agree with the majority, however, that the estate's claim for injury to Robert Genrich allegedly caused by medical malpractice is time-barred because of the application of Wis. Stat. § 893.55(lm)(a).
¶ 92. In regard to the wrongful death action of Kathy Genrich, as the surviving spouse of Robert Genrich, the place to start the analysis is with the wrongful death entitlement statute, Wis. Stat. § 895.03, which states:
Recovery for death by wrongful act. 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.
¶ 93. The statute seems quite clear that in order to recover for a death, the party responsible for the injury resulting in death may be sued for damages despite the death of the person injured. It seems impossible to me to read the statute in any way other than that death is a condition precedent, which must be met, before there can be such a lawsuit for wrongful death.
¶ 94. That conclusion is consistent with Wisconsin case law. An action for wrongful death did not exist at common law, but rather is a statutory remedy, *596available under the terms and conditions specified in the statutes. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 312, 294 N.W.2d 437 (1980). In Wisconsin, the legislature created a wrongful death action in 1858. Terbush v. Boyle, 217 Wis. 636, 638, 259 N.W.2d 859 (1935).
¶ 95. In Terbush, the question was when did the claim accrue: (1) on the date of injury; (2) on the date of death; or (3) when the administrator was appointed. This court, in a unanimous opinion authored by then Chief Justice Marvin B. Rosenberry, clearly answered the question: "The action for wrongful death accrues at time of death . ..." Id. at 640.
¶ 96. In Holifield v. Setco Indus., Inc., 42 Wis. 2d 750, 168 N.W.2d 177 (1969), we were asked to answer the question of when the statute of limitations began to run in a wrongful death action based on product liability or negligent manufacture. We focused on the language in Wis. Stat. § 895.03, and concluded that if the decedent could not have brought an action, then his special administratrix could not have brought an action. Id. at 757. In concluding that the decedent could have brought the action for damages, and, therefore, that the special administratrix could bring a wrongful death action, we stated: "Since he would not have been barred by the applicable statute of limitations, the special administratrix of his estate is not barred, provided, of course, the action is brought within three years of the death, as was here done." Id. (emphasis added). We clearly stated that the action accrued at the date of death.
¶ 97. In the case of Miller v. Luther, 170 Wis. 2d 429, 440-41, 489 N.W.2d 651 (Ct. App. 1992), a case involving allegations of medical malpractice, it was stated:
*597Section 895.03 is not a statute of limitation, but rather is an entitlement statute. Although a wrongful death action accrues at the time of the decedent's death, a beneficiary is not even entitled to bring a wrongful death action unless the conditions in sec. 895.03 exist. Section 895.03 mandates that a wrongful death action cannot be brought unless the decedent, at the time of his death, was entitled to maintain an action and recover damages. [Emphasis added.]
¶ 98. In Miller, the court of appeals went on to emphasize, again, that "a wrongful death action accrues at the time of death ...." Id. at 442 2
¶ 99. In the case before the court, since Robert Genrich had a claim at the time of his death on August 11, 2003, his surviving spouse, Kathy Genrich, had a claim for wrongful death that accrued on that date — the date of his death. This wrongful death claim, therefore, was brought within the applicable statute of limitations when commenced on August 9, 2006.
*598¶ 100. For the foregoing reasons, focusing on the relevant statutory language and long-standing precedent in Wisconsin, I respectfully dissent in part and concur in part.
¶ 101. Iam authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion.Majority op., ¶ 34.
The majority claims that these statements are dicta. Majority op., ¶ 39. The court of appeals' holding in Miller that a wrongful death action accrues at the time of the decedent's death, but that such "action cannot be brought unless the decedent, at the time of his death, was entitled to maintain an action and recover damages," was essential to the court's determination of the issues based on the particular facts before it. Miller v. Luther, 170 Wis. 2d 429, 441, 489 N.W.2d 651 (Ct. App. 1992).
In setting forth its holding, the court of appeals went on to emphasize the significance of accrual at the time of death: "Thus, Miller's wrongful death action was barred by a statute of limitation only to the extent that her husband failed to preserve his medical malpractice claim against Luther, and, subsequently, barred Miller's action under sec. 895.03. Her wrongful death action was not barred by the application of its own statute of limitation." Id. (emphasis added).