Court allows wrongful death claim

Listen to this article

A man may bring a wrongful death action on behalf of a stillborn, and then move to establish paternity, the Wisconsin Supreme Court held Mar. 9. However, he may not bring a paternity action, and then file a wrongful death action.

C.A.V.M. was stillborn as a result of a motor vehicle accident involving her mother, Alicia. Alicia is legally incompetent as a result of the accident.

Shannon E.T. initiated a wrongful death action against Alicia and the other driver, alleging that he was the father of C.A.V.M.

Wood County Circuit Court Judge Edward F. Zappen, Jr., held that the action could not proceed without a determination that Shannon was the father, and stayed the case. Shannon then commenced a paternity action.

Alicia’s guardians moved to dismiss, arguing that sec. 767.45(1) does not permit a man to claim paternity of a stillborn. Monroe County Circuit Court Judge Michael J. McAlpine granted the motion.

The court of appeals affirmed in a published opinion, Shannon E.T. v. Alicia M.V.M., 2006 WI App 104, 718 N.W.2d 729.

The Supreme Court affirmed, in a decision by Justice N. Patrick Crooks. How-ever, the court held that Shannon could bring a motion under sec. 885.23 to determine his paternity in the pending wrongful death action, an issue the court of appeals did not consider.

Justice David T. Prosser Jr. dissented, concluding that the paternity action could proceed.

Paternity

The court first held that Shannon could not commence a paternity action, because the statute refers to “the child,” and a stillborn does not qualify as a “child.”

The paternity statutes provide detailed procedures. Under sec. 767.50(1), a paternity trial must consist of two parts: first, the determination of paternity; and second, child support, legal custody, periods of physical placement, and related issues.

From this structure, the court of appeals concluded, and the Supreme Court affirmed, that the Legislature did not intend for a man to be able to bring a paternity action solely for the purpose of bringing another action, such as a wrongful death claim.

Wrongful Death

However, the court concluded that a man may commence a wrongful death action, then move for a determination of paternity in that action.

Section 885.23 provides that, whenever it is relevant in a civil action to determine the parentage or identity of a “child, person or corpse,” the court shall direct genetic tests.

In addition, longstanding law provides for a wrongful death action on behalf of a viable fetus that was stillborn. Kwaterski v. State Farm Mutual Automobile Ins. Co., 34 Wis.2d 14, 148 N.W.2d 107 (1967).

Because the child’s parentage is relevant to the wrongful death action, the court held that the plain language of the statute allows for a determination of paternity within the pending wrongful death action.

	Related Article Case Analysis

Accordingly, the court affirmed the court of appeals’ holding that the paternity action was properly dismissed. Unlike the court of appeals, however, the court held that paternity could be determined in the pending wrongful death action.

The Dissent

Justice Prosser dissented, concluding that Shannon is not precluded from pursuing his paternity claim via sec. 767.45.

Prosser noted that sec. 767.45(3) allows for the filing of a paternity action before the child is born. Were the child to die, the cause of action to determine paternity would survive the death. Accordingly, he concluded that “child” is broad enough to include a stillborn.

Prosser added, “If the court were determined to bar recovery by an unmarried father for the wrongful death of an unborn child, I could understand a strategy in which the court would exclude every possible means for the father to establish paternity. But that does not appear to be the goal of the majority opinion. Thus, it is hard to fathom why the court spends many pages trying to show that a man ‘alleging himself to be the father of the child’ cannot bring a motion under sec. 767.45(1) ‘for the purpose of determining the paternity of the child.’ Wis. Stat. sec. 767.45(1) (2003-04). The language in sec. 767.45(1) is clearly broad enough to cover the facts of the case.”

Click here for Case Analysis.

David Ziemer can be reached by email.