In a 4-3 decision authored by Chief Justice Abrahamson, joined by Justices Crooks, Bradley, and Prosser, the Wisconsin Supreme Court held that minor children can recover for the wrongful death of their father when the deceased father left behind an estranged spouse who is not eligible to recover. Justice Roggesanck authored a dissenting opinion and was joined by Justices Ziegler and Gableman. The case is Force v. American Family Mutual Ins. Co., 2014 WI 82.
Background
Billy Joe Force was killed in an automobile accident that was allegedly caused by the negligence of Jeffrey Brown (Brown). Mr. Brown’s vehicle was insured by American Family. At the time of Force’s death, he was married to Linda Force. Linda and Billy Joe Force were estranged and had not lived together since 1996. Mr. Force also did not provide any pecuniary support to Linda Force.
Linda Force brought a claim for wrongful death and sought damages for pecuniary loss and loss of society and companionship under Wisconsin’s wrongful death statute (Wis. Stat. § 895.04). The circuit court determined that Linda Force had no compensable damages and dismissed her claims. Linda Force did not appeal this decision.
Mr. Force also had three minor daughters. Linda Force was not the mother of any of the daughters. Each of the daughters attempted to assert claims for pecuniary loss and loss of society and companionship under the wrongful death statute.
Circuit Court Decision
The circuit court dismissed the daughters’ claims. The circuit court held that § 895.04 provides that Linda Force was the only proper plaintiff in the case and that the minor daughters did not have independent causes of action. The minor daughters appealed the case to the court of appeals, which certified to the Wisconsin Supreme Court. The Wisconsin Supreme Court accepted the case.
The issue presented to the Wisconsin Supreme Court is whether, under the language of the wrongful death statute, can minor children recover for the wrongful death of their father when the deceased leaves behind a spouse who was estranged from the deceased and who is precluded from recovering for the wrongful death.
Wisconsin Supreme Court Decision
The Supreme Court reversed, holding that “that the phrase ‘surviving spouse’ in Wis. Stat. § 895.04(2) does not always simply mean any living spouse of the deceased.” According to the majority, the “meaning of the phrase ‘surviving spouse’ has been elucidated by scrutinizing unique fact situations to define ‘surviving spouse’ in accord with the legislative purposes of the wrongful death statutes, rather than considering only the literal meaning of the phrase ‘surviving spouse.’”
In this case, the majority concluded under the statute that the term “surviving spouse” did not include Linda Force (the deceased’s estranged spouse, who was barred from recovery). The majority opined that if Linda Force is not a “surviving spouse” under the statute, the minor children have a claim as lineal heirs.
The majority explains that to reach this conclusion, it had to “examine” the text of the wrongful death statute using various “interpretative aids.” The majority concluded that the “legislative purposes” of the statute is to “impose liability on the tortfeasor and allow recovery by the deceased’s relatives who would have recovered had the deceased lived.”
Using these “interpretative aids,” the majority held that the Court was to interpret the wrongful death statute to “apply to the unique fact situation presented by a case in order to meet the legislative purposes, rather than apply a strict literal interpretation of the phrase ‘surviving spouse.’”
Justice Prosser’s Concurring Opinion
Justice Prosser authored a lone concurring opinion in which he explains that courts “try to avoid absurd results, but courts are not eager to disregard the seemingly clear language of the statute.” Justice Prosser goes on to say that this “reluctance” is “salutary because it reflects the deference and respect of the judiciary for the policy choices of other branches of government.”
Justice Prosser proceeds to explain why he joins the majority in rewriting a clear statute. According to Justice Prosser, “[a]bsurd results are unexpected” and “produce hardship or unfairness that is quickly recognized and cannot be ignored.” Recognizing that the statute is clear on its face, Justice Prosser ends his concurrence by “implore[ing] the legislature to rewrite the statute.”
Dissenting Opinion
Justice Roggensack authored the dissenting opinion and was joined by Justices Ziegler and Gableman.
The dissent states that while “the majority opinion reaches an appealing result as it permits the minor children…to maintain a claim” for their father’s death, the majority’s opinion “is not based on statutory construction and will create considerable mischief in the future.”
The dissent explains that the majority should have affirmed the lower court’s decision and then “fully describe how unfair the current statute is to children who have suffered significant damages due to the wrongful death of a parent, but who have no claim when the surviving spouse has no recovery.” However, according to the dissent, “[i]nstead of acknowledging that a claim for wrongful death is purely statutory and that at common law no such claim existed,” the majority opinion “pretends” that it is construing the statute and in the process “creates a new claim.”
The dissent further notes that by “[s]aying that § 895.04(2) means whatever the majority wants it to mean will cause confusion and repetitive litigation.”