811 N.W.2d 887
Wis. Ct. App.2012Background
- Bowen and Lange allege Sara Lange, Sara's husband Thomas Lange, and American Family Insurance; Sara died in a car collision October 26, 2007.
- Bowen, as Sara's adult child, seeks wrongful death damages and, as trustee, damages for Sara's conscious pain and suffering.
- Thomas allegedly disclaimed his right to recover for Sara's wrongful death under Wis. Stat. § 854.13, which Bowen argues should pass the claim to Sara's lineal heirs.
- The circuit court dismissed Bowen's wrongful death claim but allowed a surviving-pain-and-suffering claim on behalf of the Estate; the court did not resolve the Estate's potential wrongful death claim.
- The court held that a surviving spouse cannot predecease a decedent for purposes of wrongful death ownership and that adult children cannot recover loss of society if a surviving spouse exists.
- American Family cross-appealed, arguing the Estate cannot bring a wrongful death claim; the court treated the Estate's claim as a nullity because no such claim was pled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who owns the wrongful death claim when a surviving spouse exists? | Bowen contends spouse can pass claim to heirs via disclaimer. | American Family argues the spouse owns the wrongful death claim and heirs may not recover. | Surviving spouse has exclusive ownership; heirs cannot recover. |
| May adult children recover loss of society and companionship when the wrongful death recovery belongs to the spouse? | Bowen argues § 895.04(4) allows adult children to recover loss of society regardless of ownership. | American Family argues only those entitled to wrongful death may recover loss of society, and spouses have priority. | Loss of society and companionship damages are limited to those entitled to wrongful death; adult children may not recover when a spouse survives. |
| Is the Estate's potential wrongful death claim a nullity or properly pled? | Estate may potentially pursue wrongful death through Bowen as trustee for Sara Lange's estate. | Estate claims are not properly pled as wrongful death claims in the record. | Cross-appeal dismissed; Estate claim not addressed as no wrongful death claim was pled. |
Key Cases Cited
- Cogger v. Trudell, 35 Wis. 2d 350 (Wis. 1967) (surviving spouse has priority; children cannot sue when spouse survives)
- Steinbarth v. Johannes, 144 Wis. 2d 159 (Wis. 1988) (killing spouse by decedent treated to predecease for purposes of wrongful death when killer)
- Xiong v. Xiong, 2002 WI App 110 (Wis. Ct. App. 2002) (children cannot recover when surviving spouse exists)
- Delvaux v. Vanden Langenberg, 130 Wis. 2d 464 (Wis. 1986) (statutory interpretation of § 895.04 and related damages)
- Steinbarth (referenced for framework on intentional killing vs. negligence and statutory application), see Steinbarth v. Johannes, 144 Wis. 2d 159 (Wis. 1988) (context for applying probate-style reasoning to wrongful death in killer scenarios)