Torts — wrongful death — standing

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Wisconsin Court of Appeals

Civil

Torts — wrongful death — standing

A surviving spouse cannot disclaim a wrongful death claim under sec. 854.13 so as to pass ownership of that claim to the deceased’s lineal heirs.

“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.”

Affirmed.

Recommended for publication in the official reports.

2011AP185 Bowen v. American Family Ins. Co.

Dist. III, St. Croix County, Vlack, J., Peterson, J.

Attorneys: For Appellant: Whitley, Jason W., Amery; For Respondent: Gherty, Terrence M., Hudson