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Adults can still be 'children'

By: dmc-admin//June 11, 2007//

Adults can still be 'children'

By: dmc-admin//June 11, 2007//

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What the court held

Case: Pierce v. American Family Mutual Ins. Co., No. 2006AP1773.

Issue: Can adult children recover for loss of society and companionship for the wrongful death of a parent?

Holding: Yes. “Children,” as that term is used in sec. 895.04(4), means “offspring,” not “minors.”

Attorneys: For Appellant: Antoine, Virginia M., Milwaukee; For Respondent: Runde, John P., Wausau

An adult child may recover for loss of society and companionship for the wrongful death of a parent, the Wisconsin Court of Appeals held on May 31.

Shirley Pierce was killed as a passenger in a snowmobile accident in 2002.

Christina Pierce, Shirley’s adult daughter, brought suit for wrongful death against the driver, Todd Devinger, and his insurer, American Family Mutual Insurance Company.

American Family moved for partial summary judgment, arguing that sec. 895.04(4) did not allow adult children to bring claims for loss of society and companionship.

Lincoln County Circuit Court Judge Glenn H. Hartley granted the motion.

After trial on pecuniary loss only, and judgment in favor of Christina, both parties appealed.

In a decision by Judge Charles P. Dykman, the court of appeals affirmed the jury award on pecuniary loss, but reversed the dismissal of Christina’s claims for loss of society and companionship.

Section 895.04(4) provides: “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 $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship 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.”

The court concluded that the statute unambiguously allows all children of the deceased, whether those children are minors or adults, to recover for loss of society and companionship for wrongful death.

American Family argued that the unmodified term “children” unambiguously refers only to minor children, because the term “children” is commonly understood to connote an age of minority.

However, the court rejected this interpretation as contrary to the plain language of the statute.

The court wrote, “To the contrary, parents commonly refer to their adult offspring as their ‘children,’ and those parents did not cease to have children when their children reached adulthood.”

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Case Analysis

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Looking to dictionary definitions, the court found three entries for “child”: “A person between birth and puberty”; “A baby: infant”; and “A son or daughter: offspring.”

Considering the context of the statute and surrounding statutes, the court held that it was clear that “children,” as used in the statute, refers to offspring, regardless of age.

The court noted that siblings may only recover if they are minors, yet the statute provides no similar limitation for children.

In addition, subsec. 895.04(2) contains the term “minor children” five times, but it is absent from subsec. (4).

The court concluded, “Because the legislature modified the word ‘children’ with the word ‘minor’ in a different subsection of the same section of the statute, we conclude that the only reasonable interpretation of the Legislature’s unmodified use of the word ‘children’ in sec. 895.04(4) is that the term includes both adult and minor children.”

Accordingly, after affirming the award of damages for pecuniary loss, the court reversed and remanded for reinstatement of the loss of society and companionship claims.

Click here for Case Analysis.

David Ziemer can be reached by email.

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