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BENCH BLOG: Court’s divided decision inspires call to action

By: Jean DiMotto//September 10, 2014//

BENCH BLOG: Court’s divided decision inspires call to action

By: Jean DiMotto//September 10, 2014//

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Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC.

The Wisconsin Supreme Court subscribes to a new interpretation of “surviving spouse” under the wrongful death statute.

As a result, a decedent’s minor children are allowed to maintain their own cause of action under the statute even though there is a living, albeit estranged, spouse.

The salient facts in Force v. American Family Mutual Insurance Co. are straightforward. Billy Joe Force died in 2008 as a result of a car accident. He and Linda Force were married in 1996 but separated six months later.

Billy Joe provided no financial support to Linda since 1997. For at least the five years prior to his death, there was no communication or affection between them. At the time of his death she resided in New York.

Billy Joe had three minor children by two different women, neither of whom he married. Linda had no obligation to support these children.

Lower court decisions

Notwithstanding the estrangement, Linda sued under the wrongful death statute.

Uniquely, the three minor children also sued the other driver and his insurance company even though the wrongful death statute provides that minor children are to be supported with a set-aside from a surviving spouse’s recovery.

Waukesha County Circuit Judge J. Mac Davis granted summary judgment to the defendants on both Linda’s claim and the children’s claim.

Davis ruled that although Linda survived Billy Joe, there were no circumstances under which she could recover damages for pecuniary loss, or loss of society and companionship. He then ruled that the three children did not have an independent cause of action for wrongful death.

Linda did not appeal the decision adverse to her. The children did appeal, and the Court of Appeals certified the case to the state Supreme Court, which agreed to review.

Majority opinion

Chief Justice Shirley Abrahamson authored the 129-paragraph majority opinion. That the opinion is not succinct is evident upon encountering a full-page table of contents at paragraph 20.

The majority made clear at the outset that the purpose of the wrongful death statute is twofold: to impose liability on wrongdoers and to protect relational interests, especially those of a decedent’s minor children.

It noted the wrongful death statute’s hierarchical beneficiary structure. The first class of beneficiaries is the surviving spouse, with a set-aside for minor children “in recognition of the duty and responsibility of a parent to support minor children.”

Its analysis then focused on determining the meaning of the statutory words “surviving spouse” in the situation where a longtime estranged spouse does not obtain a divorce, has no recoverable damages upon the death of the decedent, and has no legal obligation to support the decedent’s minor children.

The text of the statute does not define the term nor does it expressly state that minor children are barred from recovery when a surviving spouse fails to recover. Accordingly, the majority turned to case law. Several Wisconsin cases were found to be inapposite because of distinctions from the above facts.

Two other cases were found to be instructive in that unique situations were considered by the appellate courts when defining “surviving spouse” in accord with the legislative purposes of the wrongful death statute. The same was true in the case law of jurisdictions such as Florida, Georgia and Tennessee.

Lastly the court looked at legislative history. It found support in the 1961 and 1962 amendments for the interest of minor children. It also found that legislative inaction in the face of various judicial interpretations through the years meant that “the legislature has left interpretation of the phrase ‘surviving spouse’ to the courts when unanticipated fact scenarios have emerged.”

Therefore, on the unique facts of this case, the court decided that since Linda Force was barred from recovery by the circuit court, she is not a “surviving spouse.” Consequently, the minor children have a cognizable wrongful death claim as lineal heirs. The dismissal of their claim was therefore reversed and the case remanded for further proceedings.

Concurrence

In Justice David Prosser’s concurrence, he beat the drum that statutory interpretation must be done reasonably to avoid absurd or unreasonable results. 

“Absurd results are much more than undesirable results,” he wrote. “Absurd results are aberrations that clash with the manifest purpose of a statute.”

Thus, disallowing the children’s claim was so at odds with the statutory purpose as to render it an absurd result.

Although this theme was mentioned in the majority opinion, it was lost in the verbiage. The concurrence stated it in bold relief.

Dissents

Justice Pat Roggensack dissented from the majority’s conclusion because she believed that it was not based on statutory construction. Moreover, she asserted that it is the Legislature’s job to fix the statute to prevent harsh results to minor children.

Roggensack argued the court’s decision will create “considerable mischief” in the future. She wondered how courts will determine different wrongful death estrangement scenarios, writing, “Is two years long enough, if there has been absolutely no communication between the spouses?”

Justice Annette Ziegler in a separate dissent expressed dissatisfaction with the majority’s analysis of case law precedent and its “avoiding the plain language of the statute.” She, too, believed legislative action, not judicial interpretation, was required.

Commentary

Despite the table of contents, this opinion was difficult to follow at times because it was repetitive and verbose. The case law analysis was uneven; some thorough, some superficial.

It is the province of the courts to construe statutes as applied to unique fact patterns. Davis did this in deciding to bar Linda Force from recovery and this court did it in searching for the meaning of the term “surviving spouse” under the unusual facts of this case.

Others may disagree on the validity of the construction, but that doesn’t mean that the act of construing in accord with legislative purpose is not within courts’ purview. Indeed, the warned-about “mischief” is the daily work of judges; circuit courts often have to make hard decisions with few, if any, parameters.

Here, there was room for judicial interpretation. But there also is room for legislative action.

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