COURT OF APPEALS

DECISION

DATED AND FILED

February 14, 2012

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2011AP185	Cir. Ct. No.� 2010CV180
STATE OF WISCONSIN�			IN COURT OF APPEALS



Lisa M. Bowen, individually, and as trustee for the estate of Sara J. Lange and Daniel Lange, �� Plaintiffs-Appellants-Cross-Respondents, �� v. American Family Insurance Company, �� Defendant-Respondent-Cross-Appellant.

�� APPEAL and CROSS-APPEAL from a judgment of the circuit court for St. Croix County:� EDWARD F. VLACK III, Judge.� Affirmed; cross-appeal dismissed.�

�� Before Hoover, P.J., Peterson and Mangerson, JJ.

�1�� PETERSON, J. Lisa Bowen and Daniel Lange (collectively, Bowen) appeal a judgment dismissing their wrongful death claims following the death of their mother, Sara Lange, in a car accident.� Sara was a passenger in a car driven by her husband, Thomas Lange, and insured by American Family Insurance Company.[1]� Bowen argues that, because Thomas disclaimed his right to recover for Sara�s wrongful death pursuant to Wis. Stat. � 854.13,[2] the right to recover passed to Bowen as Sara�s next lineal heir.� However, we conclude that a surviving spouse cannot disclaim a wrongful death claim under � 854.13 so as to pass ownership of that claim to the deceased�s lineal heirs.� We also reject Bowen�s argument that the deceased�s adult children may recover loss of society and companionship damages even if the wrongful death recovery belongs to the surviving spouse.� We therefore affirm on the appeal.

�2�� American Family cross-appeals, arguing the circuit court erred by failing to dismiss a wrongful death claim brought by Bowen as trustee for the Estate of Sara Lange.� American Family acknowledges that the Estate may bring a survival action for Sara�s pain and suffering, but it argues the Estate is barred from bringing a wrongful death claim.� Bowen, however, concedes that the Estate is not making any claim for wrongful death.� The issue of the Estate�s wrongful death claim is therefore a nullity, and we need not address it.� Accordingly, we dismiss American Family�s cross-appeal.

BACKGROUND

�� 3�� Bowen�s complaint alleged that she was the adult child of Sara Lange.� On or about October 26, 2007, Sara was a passenger in a vehicle insured by American Family and operated by her husband, Thomas.� The Lange vehicle collided with another vehicle, and, as a result, Sara was trapped inside the vehicle.� Sara subsequently died from the injuries she sustained in the collision.

�� 4�� Bowen asserted a wrongful death claim against American Family for Sara�s death.� She acknowledged that, under Wisconsin�s wrongful death statute, subject to certain protections for the deceased�s minor children, a wrongful death claim belongs to the deceased�s surviving spouse.[3]� See Wis. Stat. � 895.04(2).� Ownership of the claim only passes to the deceased�s next lineal heirs�that is, the deceased�s adult children�if there is no surviving spouse.� Id.� However, Bowen contended that, in the Langes� situation, Thomas would be unable to recover for Sara�s wrongful death because his contributory negligence was greater than that of the other driver.� Bowen therefore asked the court to �extend or modify the existing wrongful death statute to allow for adult children to recover for the loss of their mother when their father cannot recover � due to his contributory negligence.�� As trustee of Sara�s estate, Bowen also sought damages for Sara�s conscious pain and suffering.� See Day v. Allstate Indem. Co., 2011 WI 24, ��61‑63, 332 Wis. 2d 571, 798 N.W.2d 199 (In a survival action, distinct from a wrongful death action, the estate may recover for the deceased�s conscious pain and suffering.).

�� 5�� American Family moved to dismiss the complaint.� It argued Bowen could not recover for Sara�s wrongful death because, under Wis. Stat. � 895.04(2), the surviving spouse has sole ownership of the wrongful death claim.� In response, Bowen contended that Thomas had disclaimed his right to bring a wrongful death claim, pursuant to Wis. Stat. � 854.13, and he should therefore be treated as if he predeceased Sara.� Bowen also argued that, even if the decedent leaves behind a surviving spouse, the decedent�s adult children should nevertheless be able to recover damages for loss of society and companionship.� Finally, Bowen asserted that, even if the court were to dismiss her wrongful death claim, the Estate would still have a valid survival claim for Sara�s conscious pain and suffering.� American Family responded that the complaint had not adequately pled a survival claim.

�� 6�� Following a hearing, the circuit court granted American Family�s motion to dismiss Bowen�s wrongful death claim.� However, the court determined the complaint sufficiently alleged facts that, if true, would entitle the Estate to recover for Sara�s pain and suffering.� The court therefore denied American Family�s motion as to the Estate�s claim for pain and suffering.

DISCUSSION

I. Bowen�s appeal

�� 7�� Bowen contends the circuit court erred by granting American Family�s motion to dismiss her wrongful death claim. However, in response, Bowen submitted materials outside the pleadings for the circuit court�s consideration. �If matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss is treated as one for summary judgment and disposed of as provided in Wis. Stat. � 802.08. �See Wis. Stat. � 802.06(2)(b). �Because Bowen�s submissions were not excluded, we review the motion as one for summary judgment.

�� 8�� We independently review a grant of summary judgment, using the same methodology as the circuit court.� Hardy v. Hoefferle, 2007 WI App 264, �6, 306 Wis. 2d 513, 743 N.W.2d 843.� Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.� Wis. Stat. � 802.08(2).� Here, the facts are undisputed, leaving only issues of law for our review.� Specifically, we must determine:� (1) whether a surviving spouse may disclaim his or her interest in a wrongful death claim so as to pass ownership of the claim to the deceased�s next lineal heir; and (2) whether the wrongful death statute allows a deceased�s adult children to recover loss of society and companionship damages when the wrongful death recovery belongs to the surviving spouse.

�� 9�� To answer these questions, we must interpret several statutory provisions.� Statutory interpretation presents a question of law that we review independently.� Estate of Lamers v. American Hardware Mut. Ins. Co., 2008 WI App 165, �7, 314 Wis. 2d 731, 761 N.W.2d 38.� �The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself.�� Id., �8.� If the meaning of the words in the statute is plain, we simply apply that language to the facts before us.� Id.

�� A. Surviving spouse�s disclaimer of wrongful death claim

�� 10�� Under Wisconsin�s wrongful death statute, a person who causes the death of another by a wrongful act is liable for damages whenever the injured party could have maintained an action and recovered damages had death not ensued.� Wis. Stat. � 895.03.� A cause of action for wrongful death is purely statutory; at common law, no such right existed.� Weiss v. Regent Props., Ltd., 118 Wis. 2d 225, 230, 346 N.W.2d 766 (1984).

�� 11�� The right to bring a wrongful death action is strictly limited to those parties designated by the legislature under Wis. Stat. � 895.04.� Steinbarth v. Johannes, 144 Wis. 2d 159, 163-64, 423 N.W.2d 540 (1988). Wisconsin Stat. � 895.04(1) states that the eligible plaintiffs are the deceased�s personal representative or �the person to whom the amount recovered belongs.�� This second category of plaintiffs is further described in Wis. Stat. � 895.04(2), which establishes a hierarchy of claimants eligible to recover.� Subsection 895.04(2) provides that if the deceased does not leave behind minor children, �the amount recovered shall belong and be paid to the spouse or domestic partner.�� However, if no spouse or domestic partner survives, the amount recovered belongs �to the deceased�s lineal heirs as determined by [Wis. Stat. �] 852.01.�� Wis. Stat. � 895.04(2).� Under Wis. Stat. � 852.01(1)(a) and (b), if the deceased�s spouse or domestic partner does not survive, the deceased�s next lineal heirs are his or her children.

�� 12�� The language of these statutes is clear.� When there are no surviving minor children, the wrongful death recovery �shall belong and be paid� to the surviving spouse.� Wis. Stat. � 895.04(2).� Only if there is no surviving spouse does the recovery belong to the lineal heirs under Wis. Stat. � 852.01�that is, the adult children.� Wis. Stat. � 895.04(2).� These statutes give the surviving spouse exclusive ownership of the right to recover for the decedent�s wrongful death and preclude the adult children from bringing wrongful death claims.� See Cogger v. Trudell, 35 Wis. 2d 350, 355-57, 151 N.W.2d 146 (1967) (surviving spouse is first in line of priorities, and surviving children have no cause of action as long as surviving spouse remains alive); Xiong v. Xiong, 2002 WI App 110, �13, 255 Wis. 2d 693, 648 N.W.2d 900 (children of a surviving spouse have no claim for the wrongful death of their parent).

�� 13�� Bowen argues that, even if the right of recovery for wrongful death belongs exclusively to the surviving spouse, the surviving spouse can disclaim that right under the probate code.� Bowen cites Wis. Stat. � 852.13, entitled �Right to disclaim intestate share,� which provides that �[a]ny person to whom property would otherwise pass under [Wis. Stat. �] 852.01 may disclaim all or part of the property as provided under [Wis. Stat. �] 854.13.�� Wisconsin Stat. � 854.13(2)(a)2., in turn, states that a person who is a beneficiary under a governing instrument may disclaim property by delivering a written instrument of disclaimer.� Bowen argues that, because Thomas disclaimed his right to recover for Sara�s wrongful death, he should be treated as having predeceased Sara.� See Wis. Stat. � 854.13(7)(a) (unless governing instrument provides otherwise, disclaimed property devolves as if disclaimant predeceased decedent).� Thus, Bowen contends the right of recovery should pass to Sara�s next lineal heirs�her adult children.�

�� 14�� We disagree.� The probate statutes Bowen cites have no direct bearing on the issue of who owns the right of recovery in a wrongful death action.� Wisconsin Stat. � 852.13 allows disclaimer by a person �to whom property would otherwise pass under [Wis. Stat. �] 852.01[.]�� (Emphasis added.)� The right to recover for Sara�s wrongful death did not pass to Thomas under � 852.01�it was conferred upon him by Wis. Stat. � 895.04(2).� Thus, � 852.13 does not permit him to disclaim the right of recovery.� Moreover, Wis. Stat. � 854.13 discusses disclaimer of property passing to a beneficiary through a governing instrument.� Again, Thomas received the right to recover for Sara�s death by statute, and a statute does not fall under Wis. Stat. ch. 854�s definition of the term �governing instrument.�� See Wis. Stat. � 854.01(2).� The disclaimer provisions Bowen cites are therefore inapplicable.

�� 15�� Bowen attempts to draw an analogy between this case and Steinbarth.� There, Patricia Johannes� adult children brought a wrongful death action against Patricia�s husband, Bernard Johannes, alleging that he intentionally shot and killed Patricia.� Steinbarth, 144 Wis. 2d at 161-62.� The circuit court dismissed the children�s complaint, concluding that the wrongful death statute precluded a suit by the decedent�s adult children when the decedent was survived by a spouse.� Id. at 162-63.� On appeal, our supreme court reversed, holding 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.�� Id. at 161.� The court reached this result by applying Wis. Stat. � 852.01(2m) (1985-86), which, at that time, provided that an heir who �feloniously and intentionally killed� the decedent was treated as having predeceased the decedent for purposes of intestate succession.[4]� See Steinbarth, 144 Wis. 2d 164 n.2.

�� 16�� Bowen argues that, because the Steinbarth court applied a probate statute to treat a surviving spouse as predeceased for purposes of a wrongful death action, we should similarly apply the disclaimer provisions in Wis. Stat. �� 852.13 and 854.13 to treat Thomas as having predeceased Sara.� However, Steinbarth was limited to the narrow fact situation before the court.� Steinbarth, 144 Wis. 2d at 161.� The court determined that, unless it applied Wis. Stat. � 852.01(2m), �a surviving spouse who feloniously and intentionally kill[ed] his or her spouse would retain the cause of action for wrongful death and prevent the cause of action from passing to other beneficiaries.�� Steinbarth, 144 Wis. 2d at 166.� In light of �the strong and pervasive legislative policy of prohibiting a killer from benefiting from his or her criminal act[,]� the court concluded the legislature could not have intended this �anomalous result.�� Id. at 166-67.� Steinbarth therefore represents an attempt to harmonize the wrongful death statute with a clear legislative policy against allowing intentional killers to benefit from their crimes.� Accordingly, Steinbarth�s reasoning is not applicable in a case, like this one, where the surviving spouse negligently caused the decedent�s death.

�� 17�� Furthermore, the Steinbarth court explicitly stated that its holding was consistent with the court�s prior interpretation of the wrongful death statute in Cogger.� See Steinbarth, 144 Wis. 2d at 168.� In Cogger, the court held that surviving children could not bring a wrongful death action against the decedent�s surviving husband and several other defendants for negligently causing their mother�s death.� Cogger, 35 Wis. 2d at 352, 360.� The court concluded that the surviving husband, not the children, owned the right of recovery.� Id. at 355‑57.� The Steinbarth court distinguished Cogger, stating:

[T]he cause of action for wrongful death [in Cogger] was based on a negligence theory.� There is no basis under the wrongful death statute or otherwise to bar a surviving spouse, who unintentionally but negligently causes his or her spouse�s death, from seeking recovery for the loss of that spouse from a more negligent tortfeasor.

In sharp contrast, however, is the situation where the surviving spouse intentionally kills his or her spouse.� In this situation, the surviving spouse cannot under any conceivable circumstance seek recovery under the wrongful death statute for the loss of the decedent.

Steinbarth, 144 Wis. 2d at 168-69.� Thus, the Steinbarth court drew a clear distinction between cases where a surviving spouse intentionally kills his or her spouse and those where the surviving spouse is merely negligent.� In this case, as in Cogger, there is no allegation that Thomas intentionally killed Sara.

�� 18�� Bowen also contends that we must apply the probate disclaimer provisions because the Steinbarth court incorporated the entirety of Wis. Stat. ch. 852 into the wrongful death statute.� She is mistaken.� The court merely stated that Wis. Stat. � 895.04(2) should be �construed in conjunction with� one specific subsection of ch. 852 in cases where the surviving spouse intentionally killed the decedent.� See Steinbarth, 144 Wis. 2d at 167.

�� 19�� Finally, Bowen argues that refusing to recognize a surviving spouse�s disclaimer of a wrongful death claim frustrates the purpose of Wis. Stat. � 895.03, which states that a person who causes the death of another by a wrongful act shall be liable �in every such case� where the decedent would have been able to recover damages had he or she not died.� Because, in this case, the person liable is also the person who owns the right of recovery, Bowen contends a claim is not possible and the statutory scheme has therefore �br[oken] down[.]�� However, we agree with the circuit court that, while contributory negligence may prevent Thomas from prevailing on a wrongful death claim, that does not mean that no such claim exists.� Our holding therefore does not frustrate � 895.03�s purpose of permitting wrongful death claims in every case where a suit for damages would have been possible had the decedent survived.

�� B. Loss of society and companionship

�� 20�� In the alterative, Bowen argues that Wis. Stat. � 895.04(4) permits adult children to recover for loss of their parent�s society and companionship, even if the right of recovery under Wis. Stat. � 895.04(2) belongs exclusively to the surviving spouse.� Subsection 895.04(4) distinguishes between two types of damages available in a wrongful death action:� (1) pecuniary damages, which may be awarded �to any person entitled to bring a wrongful death action�; and (2) �[a]dditional damages� for loss of society and companionship which may be awarded �to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.�� Bowen concedes that, under � 895.04(4)�s plain language, only a person entitled to bring a wrongful death action may recover pecuniary damages.� However, she asserts that any relative listed in � 895.04(4) may recover loss of society and companionship damages, regardless of whether that relative is entitled to bring a wrongful death action.

�� 21�� We do not read Wis. Stat. � 895.04(4) as expanding the class of claimants who may recover loss of society and companionship damages.� Instead, we read � 895.04(4) as limiting the availability of loss of society and companionship damages to certain persons within the class of claimants entitled to bring wrongful death actions.� In other words, anyone entitled to bring a wrongful death claim under Wis. Stat. �� 895.04(1) and (2) may recover pecuniary damages, but loss of society and companionship damages are only available if the claimant is the decedent�s spouse, child, parent, or minor sibling.� So, for example, if a decedent�s adult sibling is entitled to bring a wrongful death claim and recover pecuniary damages, � 895.04(4) nevertheless prevents the sibling from recovering damages for loss of society and companionship.

�� 22�� Bowen�s interpretation of Wis. Stat. � 895.04(4) is at odds with Wis. Stat. � 895.04(1) and (2), which expressly set forth the persons entitled to bring wrongful death actions and the persons to whom the amount recovered belongs.� Additionally, her reasoning implicitly conflicts with cases holding that adult children cannot recover when the decedent�s spouse survives.� See Cogger, 35 Wis. 2d at 355-57; Xiong, 255 Wis. 2d 693, �13.� Finally, our supreme court has rejected the proposition that � 895.04(4) �creates separate and distinct causes of action in the spouse, � children, and parents of the deceased so that each might recover for their respective losses.�� Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 492, 494, 387 N.W.2d 751 (1986).� While Bowen argues that �standing precedent interpreting [� 895.04] has misapplied the statute by concluding that only a single person or entity of lineal descent can recover for loss of society and companionship[,]� we are bound by prior supreme court decisions and published court of appeals decisions.� See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).� We therefore affirm the judgment dismissing Bowen�s wrongful death claim.

II. American Family�s cross-appeal

�� 23�� In its cross-appeal, American Family argues the circuit court erred by failing to dismiss a wrongful death claim brought by Bowen as trustee for the Estate of Sara Lange.� American Family refers us to the circuit court�s written judgment on the motion to dismiss, where the court stated American Family�s motion was �denied as to [Bowen] acting as trustee for the estate of the decedent on the claims for the wrongful death and pain and suffering.�� (Emphasis added.)� American Family acknowledges that the Estate may bring a survival action for Sara�s pain and suffering, but it argues the Estate is barred from bringing a wrongful death claim.��

�� 24�� However, based on our review of the record, the Estate is not making a claim for wrongful death.� Bowen�s complaint did not assert a wrongful death claim on behalf of the Estate.� The parties� circuit court briefs did not refer to any wrongful death claim by the Estate, nor was any such claim addressed during the hearing on American Family�s motion to dismiss.� Moreover, Bowen�s brief in the cross-appeal concedes that the Estate is not making any wrongful death claim.� Therefore, the circuit court judgment�s reference to the Estate�s wrongful death claim, while erroneous, is also a nullity.� Accordingly, we need not address American Family�s argument that the court erred by failing to dismiss the Estate�s wrongful death claim, and we dismiss the cross-appeal.

�� By the Court.�Judgment affirmed; cross-appeal dismissed.

��

[1] For clarity, we refer to Thomas and Sara Lange by their first names throughout this opinion.

[2] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[3] Neither party contends that Sara had any minor children at the time of her death.

[4] Under the current version of the statutes, Wis. Stat. � 852.01(2m) states that the inheritance rights of an heir who �killed the decedent� are governed by Wis. Stat. � 854.14.� Section 854.14, in turn, provides that �the unlawful and intentional killing� of the decedent �[r]evokes every statutory right or benefit to which the killer may have been entitled by reason of the decedent�s death.�� Wis. Stat. � 854.14(2)(c).

Opinion Filed:	February 14, 2012
Submitted on Briefs:�	January 31, 2012


JUDGES:	Hoover, P.J., Peterson and Mangerson, JJ.
��
��

Appellant
ATTORNEYS:	On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of Jason W. Whitley of Novitzke, Gust, Sempf, Whitley & Bergmanis, Amery.�

Respondent
ATTORNEYS:	On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of Terrence M. Gherty of Gherty & Gherty, S.C., Hudson.�

Case No.:	2011AP185
Complete Title of Case: