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).