This is an appeal on bypass granted pursuant to sec. (Rule) 809.60, Stats. (1993-94), from an order of the circuit court for La Crosse County, Dennis G. Montabon, Judge. The order of the circuit court approved a settlement between Mrs. Lisa Johnson and several third-party tortfeasors allegedly responsible for the one vehicle accident which caused the death of Mr. Scott E. Johnson, Mrs. Johnson's spouse at the time. Transportation Insurance Company, the worker's compensation insurer of Mr. Johnson's employer had paid death benefits upon Mr. Johnson's death. Pursuant to the Wisconsin Worker's Compensation Act, Ch. 102, Stats. Transportation Insurance Co. sought allocation of the рroceeds of the settlement pur *40 suant to sec. 102.29(1), Stats. (1993-94). 1 The circuit court ordered distribution of that portion of the settlement proceeds apportioned for pain and suffering and *41 expenses related to Mr. Johnson's burial, but did not-order distribution of that portion of the proceeds apportioned for loss of consortium or pecuniary dаmages. The issue on appeal is whether pecuniary damages recovered by a surviving spouse in a settlement of a third-party wrongful death claim are subject to distribution.
We hold that amounts recovered for pecuniary loss are subject to distribution under sec. 102.29(1), Stats.
Mr. Scott E. Johnson was killed when the truck he was driving during the course of his emрloyment with Domke Contractors, Inc., went through the railings of a bridge and fell into the river below. Death apparently occurred before the truck entered the river. Transportation Insurance Co., Domke Contractors' workers compensation carrier, paid death benefits totaling $108,067.50 pursuant to the Worker's Compensation Act. Section 102.46, Stats. (1993-94). 2 Mrs. Johnson brought a subsequent wrongful death action both personally and as the administrator of her husband's estate against the manufacturer and sellers of the tires which were on the truck at the time of Mr. Johnson's death and against various state employees who designed and constructed the bridge.
The parties negotiated a sеttlement to. the suit which totaled $490,000. The settlement was structured as follows: For loss of consortium Mrs. Johnson *42 received $50,000, 3 for pecuniary loss she received $419,000, for pain and suffering and expenses in connection with Mr. Johnson's burial the estate received $21,000. Pursuant to sec. 102.29(1), Stats., the settlement and the distribution of the proceeds were subject to the approval of the circuit court. A hearing was held on the matter on January 18,1994.
The circuit court approved the settlement in its Findings of Fact and Order Approving Settlement and Dismissing Action, dated February 14,1994. As part of that order, the circuit court held that reimbursement to Transportation Insurance Co. pursuant to sec. 102.29(1), Stats., was required only from the portion of the settlement that went to the estate. After deducting the pro rata costs of collection, this meant that the Estate of Scott E. Johnson, Deceased, received $3,601.67, representing one-third of the proceeds, and Transportation Insurance Co., as worker's compensation carrier for Domke Contractors, Inc., received the remaining $7,203.32. The circuit court ordered the remaining settlement proceeds, $241,312.48 after deducting pro rata costs of collection, be divided among Mrs. Johnson and her two minor children, Kristina M. Johnson and Emily M. Johnson, pursuant to sec. 895.04(2), Stats. (1993-94). 4 The circuit court ordered *43 $60,000 be set aside, in trust, for each minor, leaving $121,312.48 for Mrs. Johnson. Transportation Insurance Co. appeals from this order. 5
Whether the pecuniary damages recovered in the settlement are subject to distribution under sec. 102.29(1), Stats., is a question of statutory interpretation. The interpretation of a statute is a question of law which appellate courts review without deference to the trial court.
State v. Wittrock,
This court set out the test for applying sec. 102.29(1), Stats., in
Kottka v. PPG Industries, Inc.,
The first court of appeals decision to apply the
Kottka
test to a wrongful death claim was
Stolper v. Owens-Corning Fiberglas Corp.,
One month later, the court of appeals in
Cummings v. Klawitter,
[t]he two types of loss represent personal injuries to the appellants, and, thus, were not claims for Rodger Cummings's injury or death. Furthermore, the two types of loss were asserted as part of a wrongful death action which the appellants could not have maintained against Harco or Mid State Truck Service. Therefore, neither Harco nor Mid State Truck Service were liable for, or could have been liable for, the two claims.
Id. аt 418-19 (citations and footnotes omitted). Because we conclude that the Cummings court was incorrect in holding that pecuniary damages in a wrongful death action represent damages personal to the surviving family members, see infra at 46, and that the Cummings court misinterpreted the requirement that "the employer or its insurer has or may have liability." see infra at 47, the Cummings court holding that *45 peсuniary damages are not subject to distribution under the statute is overruled.
We conclude that the test laid out in
Kottka
for sec. 102.29(1), Stats., distribution to apply contains three elements, all of which were satisfied by Mrs. Johnson's wrongful death action for pecuniary damages. First, the action must be one grounded "in tort."
Berna-Mork v. Jones,
The first element of the
Kottka
test is not in dispute in this case. A wrongful death action is an action "in tort" as that term is used in sec. 102.29(1), Stats.
See Kottka,
However, Ms. Johnson contends that the second element was not satisfied in this case. She argues that a wrongful death action is not for the employee's injury or death because it is like a claim for loss of society in that it is a separate cause of action which never belonged to the decedent.
DeMeulenaere v. Transport Insurance Co.,
*46
Wrongful death actions are purely a statutory remedy.
Weiss v. Regent Properties, Ltd.,
Our holding here is consistent with the holding in
Kottka
that damages for loss of consortium priоr to the decedent's death are not subject to distribution. There this court reasoned that, "the elements of loss of society, affection and sexual companionship in a spouse's action for loss of consortium are personal to the claiming spouse and apart from the claim of the injured spouse."
Id.
at 521. In contrast to the personal nature of the elements of the damages for loss of consortium, the elements of a damage claim for pecuniary injury are
*47
objective. They include prospective earnings, the value of support and services provided by the deceased and the valué of the property that might have beеn accumulated due to the efforts of the deceased had he lived.
See
Wis. JI — Civil 1861;
Ewen v. The Chicago & Northwestern Railway Co.,
The third element of the
Kottka
test is that the injury or death must be one "for which the employer or its insurer has or may have liability."
Kottka,
Mrs. Johnson argues that Transportation Insurance Co. did not have liability here because wrongful death actions cannot be maintained against an insurer due to the exclusive remedy provision of the Worker's Compensation Act. Section 102.03(2), Stats.
7
This argument misinterprets this court's statement in
Kottka
relating to the liability of the insurer. The insurer liability referred to in
Kottka
is the insurer's
*48
liability under the Worker's Compensation Statute for the injury or death of the employee, not its legal liability in a subsequent action.
See Kottka,
Mrs. Johnson also argues that the pecuniary damages she received from the tortfeasors were based only in part on the loss of the decedent's earnings. She further argues that because the statutory death benefit formula uses the decedent's earnings as the only factor in determining the death benefit, only that part of the settlement for lost earnings represents amounts the insurer has or may have liability for. Mrs. Johnson's argument fails because although the formula uses earnings as its base, thе death benefit is not compensating only for lost earnings. Instead, the death benefit is part of an all-pervasive legislative scheme which attempts to effect a compromise between the employer and the employee's competing interests by granting the worker a certain award in lieu of all common law remеdies he may otherwise have had against the employer in exchange for abrogation of the employer's defenses.
Id.
at 507 (quoting
Mulder v. Acme-Cleveland Corp.,
In conclusion, the benefit schedules and allocation formulae in the Worker's Compensation Act are not scientifically precise, and they do not always produce the perfect result.
See Kottka,
By the Court. — Order affirmed in part, reversed in part, and cause remanded with directions.
Notes
Section 102.29(1), Stats. (1993-94), provides in part:
102.29 Third Party Liability. (1). The making of a claim for compensatiоn against an employer or compensation insurer for the injury or death of an employe shall not affect the right of the employe, the employe's personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party; nor shall the making of a claim by any such person against a 3rd party for damages by reason of an injury to which s. 102.03 to 102.64 are applicable, or the adjustment of any such claim, affect the right of the injured employe or the employe's dependents to recover compensation. The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall have the same right to make claim or maintain an action in tort against any other party for such injury or death.... Each shall have an equal voice in the prosecution of said claim, and any disputes аrising shall be passed upon by the court before whom the case is pending, and if no action is pending, then by a court of record or by the department. If notice is given as provided in this subsection, the liability of the tort-feasor shall be determined as to all parties having a right to make claim, and irrespective of whether or not all рarties join in prosecuting such claim, the proceeds of such claim shall be divided as follows: After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employe or the employe's personal representative or other person entitled to bring aсtion. Out of the balance remaining, the employer, insurance carrier or, if applicable, uninsured employers fund shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this chapter, except that it shall not be reimbursed for any payments of increased compensation made or to be made under s. 102.18(l)(bp), 102.22, 102.35(3), 102.57 or 102.60. Any balance remaining shall be paid to the employe or the employe's personal representative or other person entitled to bring action. ... A settlement of any 3rd party claim shall be void unless said settlement and the distribution of the proceeds thereof is approved by the court before whom the action is pending and if no action is pending, then by a court of record or by the department.
Section 102.46, Stats. (1993-94), provides:
102.46 Death Benefit. Where death proximately results from the injury and the deceased leaves a person wholly dependent upon him or her for support, the death benefit shall equal 4 times his or her average annual earnings, but when added to the disability indemnity paid and due at the time of death, shall not exceed two-thirds of weekly wage for the number of weeks set out in s. 102.44(3).
The amount of the settlement allocated to loss of consortium was the maximum allowed by statute at the time of Mr. Johnson's death. Section 895.04(4), Stats. (1985-86). The maximum amount recoverable under sec. 895.04(4) has since been raised to $150,000.1991 Act 308, sec. 1 (eff. 3/16/92).
Section 895.04(2), Stats. (1993-94), provides in part:
895.04 Plaintiff in wrongful death action. ... (2) If the deceased leaves surviving a spouse, and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court of record, in recognition of the duty *43 and responsibility оf a parent to support minor children, shall determine the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse, and any other facts or information it may have or receive . . . but such amount shall not be in excess of 50% of the net amount received after deduction of costs of collection....
In its brief, Transportation Insurance Co. states that it does not take the position that Lisa M. Johnson's recovery for loss of her deceased husband's society and companionship is subject to distribution under Section 102.29(1).
Section 895.03, Stats. (1993-94), provides:
895.03 Recovery for death by wrоngful 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 in this state.
Section 102.03(2), Stats. (1993-94), provides in part:
102.03 Conditions of liability.... (2) Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employe of the same employer and the worker's compensation insurance carrier....