Sаe Lor CHANG, Plaintiff-Appellant-Cross Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent-Cross Appellant.
No. 92-1336
Supreme Court of Wisconsin
April 20, 1994
514 N.W.2d 399
For the defendant-respondent-cross appellant there were briefs by James O. Conway, Patricia A. Chucka and Olsen, Kloet, Gunderson & Conway, Sheboygan, and oral argument by James O. Conway.
DAY, J. This is an appeal by the plaintiff and cross appeal by the defendant from a declaratory judgment of the circuit court for Sheboygan County, the Honorable L. Edward Stengel, Judge. This appeal and cross appeal are submitted on a joint stipulation entitled, “Agreed Statement in lieu of a Record,” as authorized under
- In a wrongful death action brought by an innocent nontortfeasor spouse for the loss of a marital child in an acсident caused solely by the negligence of the other spouse, is the recovery of the innocent spouse subject to reduction from the statutory maximum?
- If the recovery of the innocent nontortfeasor spouse is reduced from the statutory maximum, then is the reduction automatically one-half, or must an allocation of damages be applied to the statutory maximum?
The circuit court was requested to declare the rights of the parties under the Wisconsin wrongful death statute when a married couple loses their natural, marital child in a single car accident caused by the negligence of one of the spouses.1 The parties agreed that the negligence of a parent in the death of a child
The circuit court concluded that even the non-negligent spouse‘s recovery would be subject to reduction from the statutory maximum set out in
We conclude that the recovery of the non-negligent spouse is not subject to reduction. Only the negligent spouse‘s recovery is reduced under
895.045 Contributory Negligence. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.
The cited portions of the above sections of the 1989-1990 statutes are identical to their 1991-1992 counterparts, excepting only the maximum statutory limit of recovery for loss of society and companionship in
As to what remains of the second certified question, we agree with the trial court that there is no automatic, equal apportionment dictated under the statute. The circuit court determined that the allocation of damages between the spouses was not to be divided automatically into equal parts, but rather should be based upon a specific finding of actual damages for each of the two spouses. We agree. Recovery under the wrongful death statute is for actual damages. Damages may be stipulated, as in this case, or damages may be awarded jointly to a class of beneficiaries if so requested and agreed, but since recovery is for aсtual damages, every individual beneficiary has the right to prove and collect upon his or her individual loss up to the statutory maximum.4 If the aggregated damages for the beneficiaries equals or exceeds the statutory maximum set in
The facts in this case were stipulated. Sae Lor Chang is the mother of Pheng Chang and spouse of Vang Chang. Vang Chang is Pheng Chang‘s natural father. On December 22, 1990, in Sheboygan County, Wisconsin, the child, Pheng Chang, was a passenger in the father‘s automobile when the father lost control of the vehicle resulting in the accident in which the child was killed. The father was solely negligent and his negligence substantially caused the accident and death of the son. The mother, Sae Lor Chang, commenced a wrongful death action against State Farm Automobile Insurance Company (State Farm), her husband‘s insurer. The parties have stipulated that the mother‘s damages for the loss of society and companionship are “the maximum damages allowed to her under Wisconsin‘s Wrongful Death Statute in effect at the time of the accident for loss of society and companionship of her son.” At that time the limit was $50,000.
The parties also stipulated to a summary of their respective positions. According to the “Agreed Statement in lieu of a Record,” State Farm‘s position is as follows:
State Farm contends that Sae Lor Chang‘s claim is diminished because her husband was the tortfeasor, and therefore her maximum claim for loss of society and companionship is one-half the maximum allowed under the Wrongful Death Statute. ($25,000.00)
State Farm‘s argument is: (1) recovery under the wrongful death statute is vested in specific classes of benefiсiaries (here, two parents); (2) there is an auto-
Applying this to the present case, State Farm argues that the maximum award vested in the two parents; that each parent was entitled up to $25,000 of the then maximum of $50,000 because of the automatic, equal division of damages; that the father‘s share must be barred or diminished to zero pursuant to
The mother‘s argument is as follows:
Sae Lor Chang contends that she is entitled to the maximum amount allowable under the Wrongful Death Statute for loss of society and companionship ($50,000.00) without reduction for her husband‘s negligence.
We agree with the mother.5
This case involves the interpretation of a statute and the application of that statute to a set of undisputed facts. The application of law or a statute to a set of undisputed facts is resolved as a matter of law. See, Ball v. District No. 4 Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984). This court decides questions of law independently without deference to the trial or appellate court.
A cause of action for wrongful death is purely statutory. No right to such a recovery was recognized at common law. Weiss v. Regent Properties, Ltd., 118 Wis. 2d 225, 230, 346 N.W.2d 766 (1984). As the right is created by statute, the right to recover damages for wrongful death and the terms of the recovery are confined to what is specified in the statute. The right to bring a wrongful death action is limited to those parties designated in the statute, Weiss, 118 Wis. 2d at 230, and the right to recover damages is limited to members of those groups, or classes, of beneficiaries listed in the statute. See, Arendt v. Kratz, 258 Wis. 437, 441, 46 N.W.2d 219 (1951); Nichols v. United States Fidelity & Guaranty Co., 13 Wis. 2d 491, 497, 109 N.W.2d 131 (1961); and Cogger v. Trudell, 35 Wis. 2d 350, 355-356, 151 N.W.2d 146 (1967); Steinbarth v. Johannes, 144 Wis. 2d 159, 163-164, 423 N.W.2d 540 (1988). Finally, the total amount of recovery allowable is limited to the amount specified in the statute.
Recovery under the wrongful death statute is keyed to actual loss. The purpose of the wrongful death statute is “to compensate for the loss of the relational
State Farm argues that recovery undеr the wrongful death statute is vested in specific classes of beneficiaries. This statement is only partially correct. The right to sue and recover damages under the wrongful death statute must be distinguished from the ownership and allocation of the recovery itself. See, Nichols, 13 Wis. 2d at 497. The right to sue and recover under the wrongful death statute is vested in the classes of beneficiaries listed in the statute. However, the existence of damages and ownership of the recovery depend upon proof of loss. Whether any of the individual beneficiaries in a given class has suffered any
Accordingly, we disagree with State Farm‘s argument that there must be an automatic, equal division of damages or recovery among the class members. There is nothing in the statute which specifies any particular division among class members, and certainly nothing dictating an automatic, equal division of damage awards or recovery among class members.
The factfinder may be asked to award damages on a pro rata basis or it may be asked to award damages jointly to a class. Likewise, a court may presume a pro rata division if no individualized findings of damages are requested or given for the members of a class. However, there is nothing in the statute which prevents any given member of the beneficiary class from proving his or her individual damages, and there is nothing to prevent those damages from being different in kind or amount than those of other beneficiaries. By their nature, wrongful death damages are likely to be very personalized losses, and the proof of such damages will likely depend upon a number of different and individualized variables. There is no reason to preclude such individualized proof, and, in fact, this court has said that the amount of damages may well vary among the beneficiaries within a given class. See, Truesdill, 11
State Farm also argues that the damage award to the class must be diminished for the contributory negligence of any member of the beneficiary class, per
If a party-beneficiary is contributorily negligent for the decedent‘s death, that party-beneficiary‘s recovery will be barred or reduced pursuant to
We conclude that the non-negligent parent is entitled to recover actual damages for loss of society and compаnionship up to the maximum allowed by the statute, without reduction. There are no provisions in the statute for reducing a non-negligent beneficiary‘s recovery. Nor are there any provisions for reducing the
State Farm cites Truesdill in an attempt to extract a rule about diminishing the recovery of one beneficiary because of another beneficiary‘s negligence. State Farm quotes the following passage from that case: “It does not logically follow that because the recovery by one of a class of beneficiaries dеsignated in the wrongful death statute is diminished or defeated, that each member of the class has a separate and distinct cause of action or their interests are not united.” Truesdill, 11 Wis. 2d at 495-496. However, this passage is taken out of context. Truesdill was concerned with joinder and necessary parties. Moreover, State Farm has again neglected to distinguish between the right to sue and recover, which is vested in a class, and the right to a recovery itself, which depends upon proof of actual loss. In fact, the very next sentence in Truesdill, following the quoted passage above, makes precisely such a distinction: “A cause of action may be vested in several persons and their recovery on the cause of action may vary according to the particular damage to the individual members of the class.” Truesdill, 11 Wis. 2d at 496.
State Farm is correct that the recovery across a class of beneficiaries is limited to the statutory maximum listed in
The statutory maximum is not a measure of damages, nor a limit upon the amount of damage which may be awarded by the jury; rather it is a limit only on recovery. See, Peot v. Ferraro, 83 Wis. 2d 727, 746, 266 N.W.2d 586 (1978), Cameron, 210 Wis. at 668. The jury is instructed to award whatever it finds is appropriate, either more or less than the statutory maximum, but the benеficiary, or beneficiaries together, may recover only up to the statutory limit. See, WIS JI—CIVIL, 1895.
Again, the wrongful death statute is keyed to actuаl damages. A party-beneficiary is entitled to prove actual damages in any amount. Only total recovery of a class is limited by the statutory maximum. Accordingly, it follows that a party-beneficiary may prove damages in excess of the statutory maximum, suffer a reduction in those damages for contributory negligence pursuant to
In Hansberry a father and mother (Mr. and Mrs. Hansberry) brought a wrongful death action against the driver of another car which collided with the car Mrs. Hansberry was driving, killing the Hansberry‘s child. The Hansberry‘s were awarded damages because the tortfeasor was found fifty-five percent negligent, but the damages were reduced because Mrs. Hansberry was found forty-five percent negligent. The court in Hansberry divided the damage award of $2,500 equally between the two parents and deducted forty-five percent from Mrs. Hansberry‘s half of the recovery to account for her percentage of the negligence. The final figure of the awards was $1,250 for Mr. Hansberry and $1,250 diminished by forty-five percent for Mrs. Hansberry. The statutory maximum for recovery for loss of society and compаnionship was then set at $2,500. Chapter 263, Laws of 1931.
Based on this interpretation of Hansberry, State Farm argues that the recovery for the mother and her husband must be limited to the statutory maximum of $50,000; that this award must be divided equally; and that because of the sole negligence of the father, his portion of the award must be diminished to zero, leaving only $25,000 remaining for his wife.
The mother counters by citing a more recent court of appeals case, Keithley v. Keithley, 95 Wis. 2d 136, 289 N.W.2d 368 (Ct. App. 1979). Keithley involved the
Confronted with this apparent conflict between Keithley and Hansberry in the present case, the court of appeals requested certification. This court accepted certification to clarify the operation of the statute and to resolve the alleged conflict in the caselaw. We conclude that there is no conflict between the cases.
At first glance the result in Hansberry may appear to support the interpretation advocated by State Farm. However, upon closer examination, it becomes clear that State Farm‘s reliance upon that case is misplaced. Hansberry does not purport to create any “rule” of automatic, equal division of damages among the beneficiaries of a given class under the wrongful death
The reason the award was divided equally between the two parents in Hansberry was not because of some independent “rule,” but rather because the damages were awarded jointly to the two parents. The special verdict in Hansberry read as follows:
At what sum do yоu assess the damages of the plaintiffs, William Hansberry and Anna Hansberry, his wife, arising from the death of their daughter Marilyn for loss of her society and companionship? Cases and Briefs, Vol. 2123, 230 Wis. 626-683, Hansberry v. Dunn, Case No. 36, January Term, 1939, (Case, p. 21, p. 44 of Record) (State Law Library, Madison, Wisconsin).
The judge specifically remarked in his decision on motions after verdict that the award of $2,500 for loss of society and companionship was given “jointly” to Mr. and Mrs. Hansberry. Cases and Briefs, Vol. 2123, 230 Wis. 626-683, Hansberry v. Dunn, Case No. 33, January Term, 1939, (Case, p. 38, p. 77 of Record). Thus, the damage award was divided equally, because it was awarded equally, not because of any independent “rule.”
The court in Hansberry did cite Munsert v. Farmers Mut. Automobile Ins. Co., 229 Wis. 581, 281 N.W. 671 (1939) to support its conclusion that an equal division of damages was appropriate. However, we read Munsert as merely supplying a basis for saying that a joint award may be divided equally among the mem
The same factual situation is found in other cases which have been cited for the supposed “rule” of automatic and equal division. For instance, Straub v. Schadeberg, 243 Wis. 257, 10 N.W.2d 146 (1943) has been cited as implying a rule of automatic, equal division of wrongful death damages. See, Keithley, 95 Wis. 2d at 137. In Straub, however, as in Hansberry, the court was not creating some independent rule of automatic, equal damage division, but was dividing in half damages awarded jointly to two parent-plaintiffs. The father and mother were joint plaintiffs and the verdict awarded damages to them jointly. Straub, 243 Wis. at 258-259.
Nor does Hansberry stand for the proposition that the reduction for the negligence of one spouse must be subtracted from the statutory maximum. Again, the result in the case is only superficially consistent with State Farm‘s argument. The reason that the Hansber
An analogous situation in the present case would have been created had both the mother and the father
The apparent conflict between the cases is thus resolved. Both decisions are ultimately based upon actual damages. In Hansberry the award was divided equally because the jury awarded the damages jointly. In Keithley the jury did not find equal damages and the jury‘s allocation of actual damages was respected. In this context we emphasize that the logic of Keithley is not to be limited to situations of divorce or even of disputes between beneficiaries. The two decisions stand for the more fundamental principle that recovery and division of recovery must reflect actual damages. Each member of the class of beneficiaries has the right to sue and to recover for his or her actual loss, whether there be a dispute or not.
State Farm next seeks support for its view from the Restatement (Second) of Torts, (1965). State Farm refers this court to section 493, “Beneficiary Under a Death Statute,” which it describes as the “Restatement of Torts Model.” That section, however, is no “model” statute, but instead merely describes the different types of wrongful death statutes commonly created. The generаl rule expressed in the Restatement is that, “[u]nless otherwise provided by statute, the contributory negligence of one beneficiary under a death statute does not bar recovery for the benefit of any
Lastly, State Farm makes generalized policy arguments in favor of its position. State Farm argues that anything but an automatic, equal division will force bereaved families to prove individualized damages, pitting family members against one another as each is forced to prove his or her special relationship with the deceased in the competition for the limited damage award dollars. This concern, however, is misplaced. There is nothing in our holding to prevent the beneficiaries and the insurers involved from settling damages as they see fit. Nor is there anything in this holding which would prevent the beneficiaries from requesting a specific formula for allocating the damages. Damages may be allocated individually or on a pro rata basis, or may be stipulated, either on an individual basis or jointly for the class. There is no requirement of any specific method of proof or allocation of damages, only that there be proof and that the allocation follow proof of damages.
The final issue raised in the second question certified, and addressed in the trial court‘s discussion, concerns the method of allocating damages recoverable up to the statutory maximum among the members оf a class of beneficiaries. As noted above, if there are no specific damage findings for individual members of the class, or if the damages are awarded jointly to a given class, damages may be presumed to be equal. Each
When there is a specific finding of different damages for the individual members of the class, the members of the class should recover in proportion to the damages each has proven. If the aggregated damages equals or exceeds the statutory maximum, then each member of the class should receive that percentage of the statutory maximum corresponding to thе proportion of his or her individual damages to the total, aggregated damages. Should there be a reduction for contributory negligence of any of the members of the beneficiary class, the individuals should still recover in proportion to the damages that are still outstanding after the reduction is made. And, if the aggregated damages for the class is still equal to or greater than the statutory maximum after any reductions for contributory negligence, then the entire statutory maximum would be available. Each beneficiary would collect that percentage of the statutory maximum corresponding to the proportion of his or her individual damages to the total, aggregated damages.
To illustrate, we will modify a hypothetical employed by the trial court in explaining its ruling. The trial court posited that a non-negligent spouse had proven damages of $75,000, while the negligent spouse had proven damages of only $25,000. It was then assumed that the negligent spouse was solely negligent and was thus barred from recovery. The question, then, was whether the non-negligent spouse would collect up to the statutory limit or collect only seventy-five per
If we assume, however, that the negligent spouse‘s damages were $25,000 after the proper reductions for contributory negligence (i.e., the negligent spouse‘s recovery was not barred), then each spouse would be entitled to recover in proportion to his or her outstanding actual damages. The aggregated damages would thus be $100,000, of which the non-negligent spouse would be entitled to seventy-five percent and the negligent spouse twenty-five percent. In this scenario the non-negligent spouse would be entitled to recover her proportion of the statutory maximum, namely, seventy-five percent of $50,000, while the negligent spouse would be entitled to twenty-five percent of the $50,000. Together the two spouses would recover the full $50,000 because actual damages exceed $50,000. In no case would a beneficiary be allowed to receive more than his or her proven damages.
In his concurrence, Justice Steinmetz claims that “[t]he majority has ignored both the plain meaning of
The single reference in Rineck on damage reduction computation under the wrongful death statute was to an article entitled, A Summary of the New Statutes Governing Medical Malpractice, by D. Saichek, appearing in the Wisconsin Bar Bulletin, October 1986. The article concerned the new medical malpractice statutes, not the wrongful death statute. The only citation offered in the article about computation under the wrongful death statute was a federal district court case from 1977 in Kansas, Benton v. Union Pac. R. Co., 430 F. Supp. 1380, 1383 (1977). The federal district court in that case, construing Kansas’ wrongful death statute, ventured to discuss the statutes in foreign jurisdictions, including Wisconsin. The district court in Benton stated that Wisconsin case law had interpreted the reduction provisions in wrongful death statutes just as we have in the present opinion, but that this approach had been altered in Wisconsin after legislative amendment in 1949.
The district court began its analysis correctly by observing that in Mueller, 254 Wis. at 467-469, the Wisconsin Supreme Court was confronted with the issue of how to compute the reductions for contributory negligence under the wrongful death statute and held that the statutory limit under the wrongful death statute places a limit upon recovery. According to Mueller, reductions for contributory negligence were deducted from damages, not from recovery. Id.
This analysis, in our opinion, was in error. First, no Wisconsin cases or authorities were cited in Benton. Mueller represented the authoritative interpretation of the wrongful death statute in Wisconsin, cited many Wisconsin cases for its support, and has never been overturned or even modified by subsequent cases by this or any other Wisconsin court on this point.
Second, the 1949 revision in the statute was a general overhaul of the statute. See, The Development of Wisconsin‘s Wrongful Death Statute—1900 to Present, Wisconsin Legislative Council, Staff Brief 71-13, June 4, 1970. There is no suggestion in the drafting record that the 1949 revision was a targeted reversal of Mueller. There are no Wisconsin cases which have suggested that it was.
Even if we assume that the 1949 Wisconsin legislature had desired that the reduction for contributory negligence should come from the statutory cap, the subsequent legislative history comрels us to conclude that the legislature returned to the previous, and majority, method of computation with subsequent amendments. In particular, the statute was amended in 1971 by Chapter 59 of the Laws of 1971. The phrase “[t]he aggregate of such maximum amounts,” the language featured in the 1949 amendment, was struck
The 1971 changes came in a package of proposals drafted by the Legislative Council whose express purpose was to loosen the limits on recovery in contributory negligence situations. The wrongful death statute amendment was accompanied by companion legislation aimed at changing the comparative negligence statute so that those persons fifty percent or less contributorily negligent may recover damages. Wisconsin Legislative Council: Report and Digest of Council Bills 1971-73, Vol. 1, p. 107. In discussing the effects оn the wrongful death statute, the Legislative Council explained that, “only a handful of states still retain wrongful death limits and the trend in recent years has been the elimination of these recovery limitations... Thus, the [wrongful death statute] draft would eliminate all maximum dollar amounts on recovery for wrongful death except for the $5,000 limitation on recovery for loss of society and companionship.” (emphasis supplied). Id., p. 108. Shortly thereafter this court reaffirmed in Peot, 83 Wis. 2d at 746, that the statutory limitations in the wrongful death statute were not limitations on damages, but rather were only limits on recovery. It is this practice which has been followed ever since, as reflected in WIS JI—Civil, 1895.
The final comment made in the concurrence that the issue of allocation of damages and recovery is not before the court is inconsistent with the grant of certification. The question of how to allocate damages and recovery was central to the circuit сourt‘s holding and was briefed by the parties.
That part of the circuit court‘s ruling limiting the non-negligent spouse‘s recovery to $25,000 is modified to increase recovery to $50,000. The cause is remanded
By the Court.—The judgment of the circuit court is modified, and as modified affirmed.
STEINMETZ, J. (concurring). The majority has ignored both the plain meaning of
Damages found by a jury in excess of the maximum amount specified in sub. (4) shall be reduced by the court to such maximum. The aggregate of the damages covered by subs. (4) and (5) shall be diminished under s. 895.045 if the deceased or person entitled to recover is found negligent.
This statute clearly mandates a specific prоcedure for courts to follow in wrongful death cases. First, if the jury award for loss of society and companionship exceeds the damage cap provided under
The majority has ignored the language of the statute and our analysis in Rineck and held that courts should apply the two reductions in the opposite order. According to the majority, a court should first reduce a jury award due to thе claimant‘s contributory negligence pursuant to
However, in this case, both the majority‘s interpretation and the interpretation mandated by the plain meaning of the statute—as expressed in Rineck—produce the same result. According to the majority, both the mother, Sae Lor Chang, and the father, Vang Chang, are in the class of possible beneficiaries under
The proper analysis would produce the same result. Only one party, Sae Lor Chang, is claiming damages in this case. First, her damages should be reduced to the statutory maximum, $50,000, pursuant to
In cases in which a contributorily negligent party brings a claim for loss of society and companionship, the majority‘s analysis will produce different results from the analysis properly described in Rineck. For the purpose of the following example, assume the $50,000 damage cap is in place. If a jury finds that a plaintiff was 50 percent negligent and finds that $100,000 would compensate the plaintiff for her loss of society and companionship, the majority would award the plaintiff $50,000. First, the majority would reduce the $100,000 jury award to $50,000 based on the plaintiff‘s contributory negligence. Then, the majority would apply the $50,000 damage cap and award the plaintiff the entire $50,000.
Under the analysis clearly intended by the legislature, the plaintiff would recover $25,000. First, a court must reduce the $100,000 to $50,000 pursuant to the damage cap in
The majority also needlessly addresses a second issue, the allocation of damages among the members of a class of beneficiaries defined in
The majority ignores the clear legislative mandate of
I am authorized to state that Mr. Justice JON P. WILCOX joins this concurring opinion.
Notes
895.04 Plaintiff in wrongful death action. (1) An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs...
(4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $50,000 for loss of society and companionship may be awarded to the spouse, children or parents of the deceased...
(7) Damages found by a jury in excess of the maximum amount specified in sub. (4) shall be reduced by the court to such maximum. The aggregate of the damages covered by subs. (4) and (5) shall be diminished under s. 895.045 if the deceased or person entitled to recover is found negligent.