Tortious
conduct that causes the death of another person
is actionable in Wisconsin, as in other states.
The statutes, rather than the common law,
provide a specific remedy. There was no remedy
until the Wisconsin legislature enacted one.
Weiss v. Regent Properties, Ltd., 118 Wis.2d
225, 345 N.W.2d 766 (1984). The courts are quick
to remind litigants that they may only recover
that which the statutes allow.
There are
two categories of damages. They are logically
divided between the damages sustained by the
victim from the time of initial injury to the
time of death, and the damages sustained by
certain statutorily defined beneficiaries after
the death. The first component is denominated a
survival action, pursuant to Wis. Stats. §§
895.01 and 895.03. The second component is
denominated a wrongful death action, pursuant to
§ 895.04.
A survival
statute, unlike a wrongful death statute, does
not create a new cause of action unknown to
common law. Instead, it changes the rule of
common law that certain actions abate with
death. Miller v. Luther, 170 Wis.2d 429, 489
N.W.2d 651 (Ct. App. 1992). The survival action
is brought by the decedent's estate for the
injury to the decedent, while the wrongful death
action provides a remedy to the beneficiaries
named in the statute who grieve and lose money
as a result of the death of their loved one.
Estate of Merrill v. Jerrick, 231 Wis.2d 546,
605 N.W.2d 645 (Ct. App. 1999).
A survival
action is permitted for the following elements
of damages: conscious pain and suffering, if any
is provable; medical expenses before death; and
loss of earning capacity before death.
There are often
problems of proof of conscious pain and
suffering in cases involving accidents that
cause near instantaneous death. Even when the
victim was conscious and alert for some limited
time period before death, such as minutes, hours
or days, the amount of damages deemed reasonable
for pain and suffering is highly variable. Proof
is often supplied not only by the occurrence
witnesses, paramedics and other health care
providers responding to the scene and immediate
treatment, but also by psychologists or other
experts on pain
The real party
in interest in a survival action is the personal
representative of the estate of the decedent. In
many cases a special administrator is appointed
and an estate proceeding is commenced for the
sole purpose of prosecuting the survival action.
A surviving spouse or minor children may sue
separately for their derivative claims from the
time of injury leading up to the time of death.
Kottka v. PPG Industries, Inc., 130 Wis.2d 499,
388 N.W.2d 160 (1986). These claims
include loss of consortium, society and
companionship.
A wrongful
death action is permitted for the following
elements of damages: loss of consortium,
society and companionship; medical, funeral,
burial, cemetery, grave marker and expenses for
care of the lot; and pecuniary loss, comprised
of loss of support to the survivors, loss of the
value of household services, and loss of
inheritance.
The loss
of society and companionship is the most
emotional aspect of the claim. Out of an
unrealistic fear that juries would be tempted to
award excessive damages, the Wisconsin
legislature has consistently over the years seen
fit to enact a cap on damages for the grief of
the survivors. Wisconsin is still one of a small
minority of states with such a cap. The current
maximum is $350,000 for the death of an adult
and $500,000 for the death of a minor. Wis.
Stats. § 895.04. The cap is amended by the
legislature from time to time, but any attempt
to apply the amendment retroactively would fail
on constitutional grounds. Neiman v.
American Nat’l. Prop. and Cas. Co., 236 Wis.2d
411, 613 N.W.2d 160 (2000). Some defense
lawyers have a disingenuous proclivity to
suggest that juries should award most of the
damages for loss of society and companionship,
thereby hoping to reduce the award for pecuniary
damages, and, hence, their clients’ total
exposure. As a result, the law now permits
the judge to advise the jury of the cap on
non-economic damages. Peot v. Ferraro, 83 Wis.2d
727, 266 N.W.2d 586 (1978).
Most cases
involve expert testimony from physicians,
vocational experts and economists. Plaintiffs'
counsel often retain these experts to estimate
and give forensic testimony on the largest
aspect of the claim, the pecuniary loss. The
experts take into account the decedent's and
survivor's age, condition of health before the
injury and death, earning capacity, life
expectancy, work-life expectancy, probable
future income, probable future personal
consumption expenditures, probable support to
the survivor, the effect of inflation, the
present value of future losses, the value of
household services, and the probable accretions
to the estate from savings in the event that
death had not occurred. The courts liberally
construe the term "pecuniary injury". Estate of
Holt v. State Farm Mut. Auto. Ins. Co., 151
Wis.2d 455, 444 N.W.2d 453 (Ct.
App.1989)(pecuniary injury includes loss of
decedent's social security disability benefits).
In the
typical case of the death of a wage earner,
plaintiff's attorney can easily employ
traditional methods of garnering the evidence.
Much of the proof comes from school records,
employment records, tax returns and witness
accounts of the decedent's industriousness. Some
evidence is usually required from government
publications, statistical tables or learned
treatises. The measure of damages is not the
gross amount of what the decedent would have
earned over his work life expectancy, but
rather, the amount that the decedent would have
contributed to his survivors after deduction of
an appropriate amount for what would have been
the decedent’s personal consumption
expenditures.
The burden
of proof is more difficult in cases involving
the death of a non-wage earner, such as an
unemployed housewife or child. Often, the
decedent made no actual monetary contributions
to the survivor. The only reasonable method of
proving pecuniary loss may be to estimate the
replacement cost or value of household services
previously provided by the decedent.
Fortunately, there are many experts, as well as
public and private sources of information
available on these issues.
Insurance
companies use every possible device to defeat or
limit damages for wrongful death. The fact of
remarriage or the possibility that a surviving
spouse will remarry is admissible on the issue
of the loss of society and companionship as well
as the loss of support caused by the death of
the victim-spouse. Jensen v. Heritage Mutual
Ins. Co., 23 Wis.2d 344, 127 N.W.2d 228 (1964).
In cases involving pecuniary loss, insurance
companies will seek to offer evidence of life
insurance received by the survivor as a possible
offset to the claimed damages. Schaefer v.
American Family Mut. Ins. Co.,197 Wis.2d 768,
531 N.W.2d 585 (1995).
The real
party in interest in wrongful death actions is
either the personal representative of the
estate, or the person designated by the statutes
as the person to whom the amount recovered
belongs.
For loss
of society and companionship, the only proper
plaintiffs, in order of preference and in
mutually exclusive categories, are the spouse,
children, parents or minor siblings of the
decedent. Wis. Stats. § 895.04(4). The statute
defines a hierarchy of claimants such that only
the persons at the highest position on the
chain, if they exist, may make the claim, to the
exclusion of all others.
For
pecuniary damages, the class of persons who by
law are allowed to be plaintiffs is as follows:
spouse, children, parents, siblings or other
lineal heirs as determined by the intestacy
statute, Wis. Stats. §852.01. The classes are
prioritized and mutually exclusive.
In all
wrongful death cases arising out of negligence,
except those resulting from malpractice, if the
victim is a married person, the only person
permitted to sue is the surviving spouse.
In Cogger
v. Trudell, 35 Wis.2d 350, 151 N.W.2d 146
(1967), the court held that the minor children
of the deceased could not maintain a wrongful
death action against the surviving spouse who
had negligently killed the deceased in a motor
vehicle accident. The reasoning was that
since there was a surviving spouse, and the
statute gave the exclusive right to sue to
surviving spouses if there was one, the children
could not sue. However, the surviving spouse
cannot sue if the surviving spouse intentionally
caused the death of the decedent. In Steinbarth
v. Johannes, 144 Wis.2d 159, 423 N.W.2d 540
(1988), the 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 statute, but
instead is treated as though having predeceased
the decedent. Therefore, the cause of
action for wrongful death accrues to the
deceased's lineal heirs.
The
restriction on who can sue often comes as a
surprise to the grieving parents of an adult
married child wrongfully killed, but the law
does not permit them to be plaintiffs. In that
situation, only the surviving spouse can sue.
Under
Wisconsin law, there is a difference between the
class of persons allowed to bring a wrongful
death claim arising out of medical malpractice,
versus the class of persons allowed to bring a
wrongful death claim arising out of any other
tort. In wrongful death cases arising out
of medical malpractice, if the victim is an
adult, only a spouse or minor child may sue, but
an adult child may not sue. Czapinski v.
St. Francis Hosp., 236 Wis.2d 316, 613 N.W.2d
120 (2000); Ziulkowski v. Nierengarten, 210
Wis.2d 98, 565 N.W.2d 164 (Ct. App. 1997). The
classification of claimants entitled to sue for
loss of society and companionship damages
resulting from the wrongful death of a medical
malpractice victim is limited to those listed in
Wis. Stats. §655.007, which includes only a
spouse, parent, minor sibling or minor child.
Adult children simply lack standing to sue.
There is also some doubt whether a parent of an
adult child has a cause of action for loss of
society and companionship arising out of the
medical malpractice - wrongful death of the
adult child. See Wells Estate v. Mt. Sinai
Medical Center, 183 Wis.2d 667, 515 N.W.2d 705
(1996), which held that no such cause of action
is allowed for medical malpractice causing
injuries, as opposed to the death of an adult
child. The Wisconsin Supreme Court held in
the Czapinski case that the difference in the
classes of allowable plaintiffs in medical
malpractice wrongful death cases compared to
other wrongful death cases is not a violation of
the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution.
On July 10, 2007, the
Wisconsin Supreme Court held that Wis. Stats. §
655.007 limits the survival of a cause of action
for wrongful death arising from medical
malpractice to a spouse, parent, minor sibling
or minor child. Lornson v. Siddiqui, 2007
WI 92, 735 N.W.2d 55 (2007). Contrary to
the hierarchical list of wrongful death
claimants in Wis. Stats. § 895.04(2), which
includes adult children as lineal heirs, an
adult child lacks standing to recover for a
derivative claim, such as loss of society and
companionship, in a wrongful death case
involving medical malpractice. The Supreme
Court held that the intended exclusivity of ch.
655, Wis. Stats., prohibits the application of
Wis. Stats. § 895.04(2), governing other
wrongful death claims.
If there
is a surviving spouse with minor children, an
amount of up to 50% must be set aside by the
court for the children. Wis. Stats. § 895.045;
Cogger v. Trudell, 35 Wis.2d 350, 151 N.W.2d 146
(1967). The court must approve settlements in
all wrongful death cases involving a lien for
minor children of the decedent. Wis. Stats. §
895.04(2).
On July 14, 2005, the
Wisconsin Supreme Court ruled that the $350,000
cap on non-economic damages in medical
malpractice cases, Wis. Stats., § 893.55(4)(d)
violated the equal protection clause of the
Wisconsin Constitution and was therefore void.
Ferdon v. Wisconsin Patients Compensation Fund,
2005 WI 125, 284 Wis.2d 573, 701 N.W.2d 440
(2005). This decision removed the cap on
non-economic damages in medical malpractice
cases that do not result in death.
Thereafter, the
Wisconsin legislature enacted a new cap for
damages in medical malpractice cases, which was
signed by the governor into law effective April
6, 2006, creating a maximum limit of $750,000
for non-economic damages. See Wis. Stat. §§
655.017 and 893.55(4)(d). If the
malpractice results in death, the old $350,000
cap applicable under Wis. Stat. § 895.04 still
applies, subject to inflationary additions.
See Wis. Stat. § 893.55(4)(f).
On July 7,
2006, the Wisconsin Supreme court overruled in
part its earlier decision in Maurin v. Hall,
2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866 and
held that that the cap on non-economic damages
in medical malpractice cases that result in
death should separately be applied to: (1)
the two types of pre-death claims: (a) to the
estate of the decedent for the pain and
suffering of the decedent, and (b) to the
surviving spouse for the loss of society and
companionship of the decedent; and (2) the loss
of society and companionship of the spouse,
children or parents of the deceased, or to the
siblings of the deceased, if they were minors at
the time of the death.
Bartholomew v. Wisconsin Patients’ Compensation
Fund, 2006 WI 91, 293 Wis.2d 38, 717 N.W.2d
216 (2006).
Therefore, under
current law, for causes of action that accrue
prior to April 6, 2006, there is no cap for
non-economic damages in medical malpractice
cases, but if the malpractice results in death,
there is a $350,000 cap for non-economic damages
for the death of an adult, and a $500,000 cap
for non-economic damages for the death of a
minor, subject to inflationary additions.
For causes of action that accrue on or after
April 6, 2006, there is $750,000 cap for
pre-death non-economic damages in medical
malpractice cases, but if the malpractice
results in death, there is still a $350,000 cap
for non-economic damages for the death of an
adult, and a $500,000 cap for non-economic
damages for the death of a minor, subject to
inflationary additions.
If only
one parent is the named insured in an uninsured
motorist insurance policy paying benefits for
the wrongful death of their child, the wrongful
death statute requires payment of the proceeds
to both parents. Bruflat v. Prudential
Prop. & Cas. Ins. Co. 233 Wis.2d 523, 608 N.W.2d
371 (2000).
The
statute of limitations for intentional torts
(murder, assault, battery) in Wisconsin is two
years from date of injury. Wis. Stat. § 893.57.
Since most intentional tortfeasors have neither
insurance coverage nor assets to pay for the
injuries or death of their victims, there are
comparatively few suits for intentional torts
compared to negligent torts. The statute of
limitations for negligent torts in Wisconsin is
three years from the date of injury. Wis. Stat.
§ 893.54. If a negligent act or omission
causes the injury and death of another, the
survival claim must be brought within three
years of the date of injury. Miller v. Luther,
170 Wis.2d 429, 489 N.W.2d 651 (Ct. App. 1992).
The wrongful death claim may be brought within
three years of the death, but only if the
survival claim was still viable at the time of
death. Lord v. Hubbell, Inc., 210 Wis.2d 151,
563 N.W.2d 913 (Ct. App. 1994).
Survival
claims and wrongful death claims are subject to
the defense of contributory negligence under the
Wisconsin comparative negligence statute, Wis.
Stats. § 895.04(7) and 895.045; Chang v. State
Farm Mut. Ins. Co.,182 Wis.2d 549, 514 N.W.2d
399 (1994). If either the victim or the
beneficiary was contributorily negligent, the
damages are reduced in proportion to the
percentage of fault of the victim and
beneficiary combined. White v. Lunder, 66 Wis.2d
563, 225 N.W.2d 442 (1975). If the percentage of
negligence of the victim and beneficiary was
higher than that of the tortfeasor, the claim is
barred.
Punitive
damages may be awarded for a survival claim, but
not for a wrongful death claim. Wangen v. Ford
Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980).
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