Donald Christ v. Exxon Mobil Corporation , 362 Wis. 2d 668 ( 2015 )

2015 WI 58
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1493
COMPLETE TITLE: Donald Christ, individually and as Special
Administrators
of the Estate of Gail P. Christ, deceased,
Jacqueline
Radosevich, individually and as Special
Administrator of
the Estate of Gary Radosevich, deceased, Mary
Jane
Beaulieu, individually and as Special
Administrator of the
Estate of William Beaulieu, deceased, Paul
Clark,
individually and as Special Administrator of the
Estate of
Sharon A. Clark, deceased, Betty Grosvold,
individually
and as Special Administrator of the Estate of
Victor M.
Grosvold, deceased, Dianne Pederson,
individually and as
Special Administrator of the Estate of Mae H.
Heath,
deceased, Carrie Duss, individually and as
Special
Administrator of the Estate of Mary Henneman,
deceased and
Arlene Christ,
Plaintiffs-Appellants-Cross-
Respondents,
Deborah Sherwood, individually and as Special
Administrator of the Estate of Gerald F. Conley,
deceased,
Randy S. Hermundson, individually, Darlene
Insteness,
individually and as Special Administrator of the
Estate of
Robert A. Insteness, deceased, Joyce Jensen,
individually,
Jean M. Leskinen, individually,, Paul T. Manny,
Anita
Manny, Douglas Winrich, individually and as
Special
Administrator of the Estate of Barbara Winrich,
deceased,
Barbara Nelson, individually and as Special
Administrator
of the Estate of Terry Nelson, deceased, Faye
Reiter,
individually, Donald Schindler, individually and
Jean Ruf,
individually and as Special Administrator of the
Estate of
Richard R. Ruf, deceased,
Plaintiffs,
v.
Exxon Mobil Corporation, Sunoco, Inc., Texaco
Downstream
Properties, Inc., Four Star Oil and Gas Company,
BP
Products North America, Inc. and Ashland
Chemical Company
Division of Ashland, Inc.,
Defendants-Respondents-Cross-
Appellants-Petitioners,
Shell Chemical, L.P., Cornerstone Natural Gas
Company and
Shell Oil Company,
Defendants.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Summary Disposition – No citation)
OPINION FILED: June 23, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 4, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Eau Claire
JUDGE: Lisa K. Stark
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, C.J.,ZIEGLER, J. dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-respondents-cross-appellants-
petitioners, there were briefs by Dennis M. Sullivan, Michael A.
Hughes, Larry Chilton, and Chilton Yambert Porter LLP, Madison,
and oral argument by Dennis M. Sullivan.
2
For the plaintiffs-appellants-cross-respondents, there was
a brief by Matthew A. Biegert, Michael J. Brose, and Doar, Drill
& Skow, S.C., New Richmond; Michael R. Sieben and Sieben Polk,
P.A., Hastings, MN; Richard Alexander and Alexander Law Group,
LLP, San Jose, CA; and Mandy Hawes, San Jose, CA. Oral argument
by Matthew A. Biegert.
3
2015 WI 58
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1493
(L.C. No. 2006CV420)
STATE OF WISCONSIN : IN SUPREME COURT
Donald Christ, individually and as Special
Administrator of the Estate of Gail P. Christ,
deceased, Jacqueline Radosevich, individually
and as Special Administrator of the Estate of
Gary Radosevich, deceased, Mary Jane Beaulieu,
individually and as Special Administrator of
the Estate of William Beaulieu, deceased, Paul
Clark, individually and as Special
Administrator of the Estate of Sharon A. Clark,
deceased, Betty Grosvold, individually and as
Special Administrator of the Estate of Victor
M. Grosvold, deceased, Dianne Pederson,
individually and as Special Administrator of
the Estate of Mae H. Heath, deceased, Carrie
Duss, individually and as Special Administrator
of the Estate of Mary Henneman, deceased and FILED
Arlene Christ,
JUN 23, 2015
Plaintiffs-Appellants-Cross-
Respondents, Diane M. Fremgen
Clerk of Supreme Court
Deborah Sherwood, individually and as Special
Administrator of the Estate of Gerald F.
Conley, deceased, Randy S. Hermundson,
individually, Darlene Insteness, individually
and as Special Administrator of the Estate of
Robert A. Insteness, deceased, Joyce Jensen,
individually, Jean M. Leskinen, individually,
Paul T. Manny, Anita Manny, Douglas Winrich,
individually and as Special Administrator of
the Estate of Barbara Winrich, deceased,
Barbara Nelson, individually and as Special
Administrator of the Estate of Terry Nelson,
deceased, Faye Reiter, individually, Donald
Schindler, individually and Jean Ruf,
individually and as Special Administrator of
the Estate of Richard R. Ruf, deceased,
Plaintiffs,
v.
Exxon Mobil Corporation, Sunoco, Inc., Texaco
Downstream Properties, Inc., Four Star Oil and
Gas Company, BP Products North America, Inc.
and Ashland Chemical Company Division of
Ashland, Inc.,
Defendants-Respondents-Cross-
Appellants-Petitioners,
Shell Chemical, L.P., Cornerstone Natural Gas
Company and Shell Oil Company,
Defendants.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished opinion and order of the court of appeals,1 which
summarily reversed a grant of summary judgment in favor of Exxon
Mobil Corp. et al., by the Eau Claire County Circuit Court, Lisa
K. Stark, Judge.
¶2 The case involves the viability of certain wrongful
death and survival claims. It is part of a larger tort suit
filed in 2006 by former employees and the estates and
1
Christ v. Exxon Mobil Corp., No. 2012AP1493, unpublished
order (Wis. Ct. App. Feb. 12, 2014).
2
No. 2012AP1493
beneficiaries of former employees at an Eau Claire tire
manufacturing plant. The tort suit alleged that the former
employees' injuries and deaths resulted from their exposure to
benzene in the workplace. This appeal relates to the summary
judgment entered against eight plaintiffs on grounds that their
claims were filed too late.
¶3 The defendants, Exxon Mobil Corp. et al.,2 contend that
the claims of these plaintiffs were not filed before the
expiration of the three-year statute of limitations set forth in
Wis. Stat. § 893.54(2) (2005-06). They contend that, under
Wisconsin law, the plaintiffs' claims could not have accrued
later than the deaths of the decedents they represent because
the discovery rule in wrongful death and survival claims does
not extend to "third parties," that is, parties other than the
decedents. Thus, they argue, the statute of limitations began
to run more than three years before any of the plaintiffs in
this appeal filed their claims.
¶4 The plaintiffs counter that their claims did not
accrue until they had reason to believe that the defendants were
responsible for the injuries giving rise to their claims. They
assert that Wisconsin's judicially created discovery rule
applies to both survival claims and wrongful death claims in
such a way that the claims may accrue later than a decedent's
2
For the sake of simplicity, we refer to the petitioners
here, collectively, as "defendants" and the respondents here,
collectively, as "plaintiffs." The parties have followed these
designations throughout the litigation.
3
No. 2012AP1493
death if an appropriate third party's discovery of the claim is
reasonable. They argue that there is no law that limits this
application of the discovery rule.
¶5 We agree with the plaintiffs and hold that the
discovery rule permits the accrual of both survival claims and
wrongful death claims after the date of the decedent's death.
In the absence of a legislatively created rule to the contrary,
claims accrue when there is a "claim capable of present
enforcement, a suable party against whom it may be enforced, and
a party who has a present right to enforce it." Emp'rs Ins. of
Wausau v. Smith, 154 Wis. 2d 199, 231, 453 N.W.2d 856 (1990)
(quoting Barry v. Minahan, 127 Wis. 570, 573, 107 N.W. 488
(1906)). These criteria are not met "until the plaintiff
discovers, or in the exercise of reasonable diligence should
have discovered, not only the fact of injury but also that the
injury was probably caused by the defendant's conduct or
product." Borello v. U.S. Oil Co., 130 Wis. 2d 397, 411, 388
N.W.2d 140 (1986). See also Carlson v. Pepin Cnty., 167
Wis. 2d 345, 352-53, 481 N.W.2d 498 (Ct. App. 1992) ("Under the
discovery rule, a cause of action accrues when the plaintiff
discovered or, in the exercise of reasonable diligence, should
have discovered his injury, its nature, its cause and the
identity of the allegedly responsible defendant.").
¶6 In the circumstances of this case, the applicable
statute of limitations began to run when the survival claims and
wrongful death claims were discovered, provided that the
4
No. 2012AP1493
plaintiffs are able to show that they exercised reasonable
diligence in investigating and discovering their claims.
¶7 Given the procedural posture of this case, the
plaintiffs have not yet demonstrated that their claims accrued
less than three years before they filed their complaint.
Accordingly, we affirm the court of appeals and remand to the
circuit court for a determination as to whether the plaintiffs
have satisfied the statute of limitations under our accrual
rule.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶8 The relevant facts are undisputed. On July 13, 2006,
multiple parties (the initial plaintiffs)3 filed suit against
multiple defendants (the initial defendants) in the Eau Claire
County Circuit Court. The complaint alleged that the initial
plaintiffs were employed at an Eau Claire tire manufacturing
facility operated by the Uniroyal Goodrich Tire Company, Inc.4
The complaint alleged that during the course of their
employment, the initial plaintiffs were exposed to benzene and
benzene-containing products. The complaint further alleged that
as a result of their exposure to benzene and benzene-containing
3
Three of these parties are relevant to this appeal: Arlene
Christ; Donald Christ, individually and as special administrator
of the Estate of Gail Christ; and Jacqueline Radosevich,
individually and as special administrator of the Estate of Gary
Radosevich.
4
In the case of the Christs and Radosevich, the decedents
they represented had been the ones employed at the manufacturing
facility.
5
No. 2012AP1493
products, the initial plaintiffs were injured and, in some
cases, died. The initial plaintiffs sought unspecified damages
on the theories of negligence, strict liability, and failure to
warn.
¶9 In due course, the initial defendants individually
answered the complaint and denied liability for the alleged
injuries. Two of the initial defendants——Hovland's, Inc. and
Shell Canada, Ltd.——also filed cross-claims against certain co-
defendants, leading those parties to file answers to the cross-
claims as well.
¶10 On December 28, 2007, an amended complaint was filed.
The amended complaint added nine parties as plaintiffs5 and three
corporations as defendants. From 2008 through 2011, various
filings not pertinent to this appeal were made in the case
resulting in the dismissal of certain defendants.
¶11 On March 5, 2012, the remaining defendants moved for
dismissal of the complaints of eight of the plaintiffs.6 This
5
Five of the nine parties are relevant to this appeal: Mary
Jane Beaulieu, individually and as special administrator of the
Estate of William J. Beaulieu; Paul Clark, individually and as
special administrator of the Estate of Sharon Ann Clark; Betty
Grosvold, individually and as special administrator of the
Estate of Victor M. Grosvold; Dianne Pederson, individually and
as special administrator of the Estate of Mae H. Heath; and
Carrie Duss, individually and as special administrator of the
Estate of Mary Henneman.
6
The motion to dismiss eight of the plaintiffs concerned
the complaints related to the following seven deceased former
employees: William Beaulieu, Gail P. Christ, Sharon Ann Clark,
Victor M. Grosvold, Mae H. Heath, Mary Henneman, and Gary
Radosevich (collectively, the decedents).
6
No. 2012AP1493
motion was based in part on Wis. Stat. § 893.54 (2005-06), which
bars recovery for survival and wrongful death claims filed more
than three years after accrual. The defendants contended that
the eight plaintiffs' claims could have accrued no later than
the time of the decedents' deaths, and because the decedents
died more than three years prior to the filing of the
complaints,7 the plaintiffs' claims were time-barred.
¶12 On March 27, the plaintiffs filed a brief opposing
dismissal. They argued that the discovery rule delayed accrual
of their claims until they knew or reasonably should have known
of their injuries and of the defendants' role in those injuries.
They contended that, at the very least, material issues of fact
remained as to when their claims accrued.
¶13 The Eau Claire County Circuit Court held a motion
hearing on April 30, 2012.8 After both sides presented their
arguments, the court——expressing substantial difficulty with the
state of the law——granted the motion. The court relied on
Miller v. Luther, 170 Wis. 2d 429, 489 N.W.2d 651 (Ct. App.
1992), and Estate of Merrill ex rel. Mortensen v. Jerrick, 231
Wis. 2d 546, 605 N.W.2d 645 (Ct. App. 1999), to determine that
7
According to the defendants, William Beaulieu died in
1997, Gail Christ died in 2002, Sharon Clark died in 2001,
Victor Grosvold died in 2003, Mae Heath died in 1996, Mary
Henneman died in 1995, and Gary Radosevich died in 1999. The
plaintiffs have not disputed these dates.
8
The court treated the defendants' motion to dismiss as a
motion for summary judgment.
7
No. 2012AP1493
the plaintiffs' claims had accrued at death, and were therefore
barred by the statute of limitations.
¶14 The court of appeals summarily reversed the circuit
court's grant of summary judgment. Christ v. Exxon Mobil Corp.,
No. 2012AP1493, unpublished order (Wis. Ct. App. Feb. 12, 2014).
The court relied on its earlier decision in Beaver v. Exxon
Mobil Corp., No. 2012AP542, unpublished slip op. (Wis. Ct. App.
May 9, 2013), which presented nearly identical facts with
different plaintiffs. The court stated: "The discovery rule
provides that the statute of limitations begins to run when the
plaintiff discovers or should have discovered the injury and
that the injury may have been caused by the defendant." Christ,
No. 2012AP1493, at 3 (citing Doe v. Archdiocese of Milwaukee,
211 Wis. 2d 312, 335, 565 N.W.2d 94 (1997)). The court did not
make a determination as to whether the plaintiffs' claims were
in fact timely, but remanded the case to the circuit court for
further proceedings.
¶15 The defendants moved for reconsideration of the court
of appeals' decision, claiming that the circuit court already
had applied the discovery rule. The court of appeals denied the
motion. The defendants then petitioned this court for review,
which we granted on October 6, 2014.
II. STANDARD OF REVIEW
¶16 We are asked to review the circuit court's grant of
summary judgment. "We review a decision on a motion for summary
judgment independently, employing the same methodology as the
circuit court." Estate of Genrich v. OHIC Ins. Co., 2009 WI 67,
8
No. 2012AP1493
¶10, 318 Wis. 2d 553, 769 N.W.2d 481. Making that determination
in this case requires us to decide the correct legal standard
for accrual for courts to apply to survival and wrongful death
claims. This involves questions of law and the interpretation
of statutes, both of which this court reviews de novo. State v.
Williams, 2014 WI 64, ¶16, 355 Wis. 2d 581, 852 N.W.2d 467; GMAC
Mortg. Corp. v. Gisvold, 215 Wis. 2d 459, 470, 572 N.W.2d 466
(1998).
¶17 We are also asked to review the court of appeals'
summary disposition of this case. The court of appeals has the
power to summarily reverse a circuit court's decision. Wis.
Stat. § (Rule) 809.21.9 The defendants contend, however, that
the summary disposition of their appeal violated their
constitutional rights. Whether a party's constitutional right
was violated is a question of constitutional fact. This court's
review of questions of constitutional fact follows a two-step
process. State v. Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228,
647 N.W.2d 142 (citing State v. Henderson, 2001 WI 97, ¶16, 245
Wis. 2d 345, 629 N.W.2d 613). First, we accept findings of fact
unless they are clearly erroneous. Id. Then, we apply
constitutional principles to those facts de novo. Id.
III. DISCUSSION
A. Wrongful Death and Survival Claims
9
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
9
No. 2012AP1493
¶18 We begin with a brief history of the types of claims
at issue in this case.10 At common law, tort claims died if
either the victim or the tortfeasor died before the victim
recovered damages. W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 125A, at 940 (5th ed., lawyer's ed. 1984).
In addition, family members of deceased victims had no cause of
action for the loss of financial support or companionship
incurred as a result of the death of their relatives. Id.
However, these early common law rules have since been altered.
¶19 Damages for injuries sustained by a tort victim prior
to his death now survive in what is known as a survival action.
In Wisconsin, statutory survival actions date back to at least
1839. See § 44, Statutes of the Territory of Wisconsin 1839.
Survival actions are not new actions created by the death of the
victim. They are actions that the victim would have had
available to him if he had survived. See Miller, 170 Wis. 2d at
436.
¶20 Survival actions are brought by the decedent's
personal representative to benefit the decedent's estate. Brown
v. Chicago & Nw. Ry. Co., 102 Wis. 137, 140-42, 77 N.W. 748
10
This court has discussed the history of survival and
wrongful death claims many times in the past, and a full
recitation of that history is not necessary here. For a more
in-depth discussion of the history of these claims, see, e.g.,
Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91,
¶¶54-69, 293 Wis. 2d 38, 717 N.W.2d 216; Brown v. Chicago &
Northwestern Railway Co., 102 Wis. 137, 140-42, 77 N.W. 748
(1898); Woodward v. Chicago & Northwestern Railway Co., 23
Wis. 400, 405-06 (1868).
10
No. 2012AP1493
(1898). Statutory survival actions exist under Wis. Stat.
§ 895.01(1)(am), which states that "[i]n addition to the causes
of action that survive at common law," certain other types of
actions survive as well. Personal injury actions seeking
damages for a decedent's injuries suffered before death fall
under the category of "other damage to the person" in Wis. Stat.
§ 895.01(1)(am)7. (formerly Wis. Stat. § 895.01(1) (1979-80)).
See Wangen v. Ford Motor Co., 97 Wis. 2d 260, 310, 294
N.W.2d 437 (1980). "An action does not abate by the occurrence
of any event if the cause of action survives or continues."
Wis. Stat. § 895.01(2).
¶21 Certain relatives of tort victims are now also able to
bring actions for wrongful death. Wrongful death actions were
created by statute in chapter 7, Laws of 1857. "A wrongful
death claim refers to the statutory cause of action belonging to
named persons for injuries suffered postdeath." Bartholomew v.
Wis. Patients Comp. Fund, 2006 WI 91, ¶55, 293 Wis. 2d 38, 717
N.W.2d 216. Since 1931, wrongful death plaintiffs have been
able to seek damages for loss of society and companionship. See
§ 2, ch. 263, Laws of 1931.11
11
Damages for loss of society and companionship are now
contained in Wis. Stat. § 895.04(4):
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
(continued)
11
No. 2012AP1493
¶22 Wrongful death actions are derivative tort actions.
Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 646, 284
N.W.2d 318 (1979). Thus, even though the wrongful death statute
creates a "new action" and "allows a person to recover his or
her own damages sustained because of the wrongful death of
another," Miller, 170 Wis. 2d at 435-36, the person's right of
action depends not only upon the death of another person but
also upon that other person's entitlement to maintain an action
and recover if his death had not occurred.
¶23 Stated differently, for a wrongful death claim to
exist, the decedent must have had a valid claim for damages
against the defendant at the time of his death. Id. at 439-40.
See also Wis. Stat. § 895.03. If the decedent would have been
barred from making a claim, the decedent's statutory beneficiary
also would be barred. To illustrate, if a party signed a
liability waiver before engaging in a dangerous activity and was
subsequently killed while participating in that activity, the
liability waiver would preclude the wrongful death claims of the
decedent's statutory beneficiaries. See Ruppa, 91 Wis. 2d at
646.
¶24 Although survival actions and wrongful death actions
are commonly intertwined, they are distinct. Often times, the
same party will seek recovery for both survival claims and
or parents of the deceased, or to the siblings of the
deceased, if the siblings were minors at the time of
the death.
12
No. 2012AP1493
wrongful death claims. However, a party need not seek to
recover for both. Indeed, different parties might file a
wrongful death action and a survival action, respectively, for
the death of one person. See Bartholomew, 293 Wis. 2d 38, ¶59.
In short, "[t]he two claims are separate claims for separate
injuries that may belong to different people." Id., ¶54.
B. The Discovery Rule
¶25 As noted above, the court has stated that a cause of
action accrues when three conditions are present: (1) a claim
capable of enforcement, (2) a party against whom the claim may
be enforced, and (3) a party with the right to enforce the
claim. Barry, 127 Wis. at 573. In Hansen v. A.H. Robins Co.,
113 Wis. 2d 550, 554, 335 N.W.2d 578 (1983), the court observed
that "there are three points in time when a tort claim may be
said to accrue: (1) when negligence occurs, (2) when a resulting
injury is sustained, and (3) when the injury is discovered."
Traditionally, most tort claims have been treated as accruing on
the date of injury because claimants usually are aware of their
injuries when they occur. However, because tort victims
sometimes are unaware of injuries when they happen, strict
adherence to this general rule "can yield extremely harsh
results" if a tort victim discovers his injury after the statute
of limitations has run. Id. at 556.
¶26 Hansen involved a question certified to this court by
the United States Court of Appeals for the Seventh Circuit. Id.
at 551. Kathleen Hansen had a "Dalkon Shield" intrauterine
device (IUD) inserted by Dr. Fabiny in May 1974. Near the end
13
No. 2012AP1493
of May 1978, she began to have significant health issues. On
June 13, she visited Dr. Macken, who examined her and told her
it was unlikely she had pelvic inflammatory disease (PID). On
June 26, she visited Dr. Fabiny, who removed her IUD and
concluded that she probably did have PID. Id. at 552-53.
¶27 On June 24, 1981, Hansen sued the IUD manufacturer——
A.H. Robins Company——in federal court, seeking recovery for her
injuries. Id. A.H. Robins moved for summary judgment, claiming
that the three-year statute of limitations on Hansen's claim had
expired. The district court concluded that Hansen had been
injured sometime before June 13, 1978. Because Hansen filed
suit more than three years after that date, the United States
District Court granted the motion for summary judgment. Hansen
appealed, and the Seventh Circuit certified a question of law to
this court. Id.
¶28 In considering whether to institute a discovery rule
for tort actions in Wisconsin, this court noted that "[t]here
are two conflicting public policies raised by the statute of
limitations: '(1) That of discouraging stale and fraudulent
claims, and (2) that of allowing meritorious claimants, who have
been as diligent as possible, an opportunity to seek redress for
injuries sustained.'" Id. at 558 (quoting Peterson v. Roloff,
57 Wis. 2d 1, 6, 203 N.W.2d 699 (1973)). Although the prompt
adjudication of tort claims is a highly desirable goal, the
court continued, a discovery rule would not create an
intolerable risk of defendants being subjected to stale or
fraudulent claims. Id. at 559. The court noted that defendants
14
No. 2012AP1493
would still be protected by the requirement that plaintiffs
prove their claims at trial, as well as the fact that claims
would accrue when injuries were discovered or reasonably should
have been discovered. Id. The court also noted that the lack
of a discovery rule sometimes allowed wrongdoers to escape
liability by barring meritorious claims. Id.
¶29 In what has become a landmark decision authored by
Justice William Callow, a unanimous court "conclude[d] that the
injustice of barring meritorious claims before the claimant
knows of the injury outweighs the threat of stale or fraudulent
actions." Id. Accordingly, the court established the discovery
rule for all tort claims not specifically covered by a
legislatively created rule. The court stated: "tort claims
shall accrue on the date the injury is discovered or with
reasonable diligence should be discovered, whichever occurs
first. All cases holding that tort claims accrue at the time of
the negligent act or injury are hereby overruled." Id. at 560.
¶30 Given that Hansen did not involve a death, it is not
surprising that the opinion made no mention of the specific
issues that now confront this court. The court did not discuss
whether the injured party or decedent was the only person who
could discover an injury. What it did discuss was the balance
of equities, the court's power to establish when claims accrue,
and the fact that other than for medical malpractice claims,
"the Wisconsin statutes do not speak" to the issue. Id. at 559-
60.
15
No. 2012AP1493
¶31 The court discussed the import of Hansen five years
later in Borello. The court said that "Hansen stands for the
proposition that mere knowledge of the fact of an injury and
nothing more will not trigger the commencement of the period of
limitations." Id. at 409. The court determined that for a
claim to accrue, the plaintiff would have to discover, or in the
exercise of reasonable diligence should have discovered, "not
only the fact of injury but also that the injury was probably
caused by the defendant's conduct or product." Id. at 411. The
court noted that this approach did not change the law, but
"merely look[ed] at the cause of action in a new light that is
more likely to produce a just result." Id. at 421.
¶32 In short, the basis for this court's adoption of the
discovery rule was, and remains, public policy. Therefore, if
the legislature has not superseded the discovery rule by statute
for a particular tort, the discovery rule will continue to apply
to claims for that tort in a way that protects the public policy
considerations set forth in Hansen and Borello.
C. Applicability of the Discovery Rule
¶33 As a preliminary matter, we note that the parties do
not dispute whether the discovery rule applies to both wrongful
death claims and survival claims; both parties agree that it
does. Rather, the parties differ about the manner in which the
discovery rule applies——specifically, whether the rule applies
to discovery by persons other than decedents. Although the
parties' arguments sometimes conflate wrongful death claims and
survival claims for purposes of this analysis, the different
16
No. 2012AP1493
characteristics of each type of claim make it appropriate to
discuss them separately. We therefore address each type of
claim in turn.
1. Wrongful Death Claims
¶34 Eight decades ago, this court stated that wrongful
death claims accrue at death. Terbush v. Boyle, 217 Wis. 636,
259 N.W. 859 (1935). Terbush followed George v. Chicago,
Milwaukee & St. Paul Railway Co., 51 Wis. 603, 604, 8 N.W. 374
(1881), and it, in turn, was followed by Holifield v. Setco
Industries, Inc., 42 Wis. 2d 750, 757, 168 N.W.2d 177 (1969).
Those cases, however, were decided before Hansen's adoption of
the discovery rule "for all tort actions other than those
already governed by a legislatively created discovery rule."
Hansen, 113 Wis. 2d at 560.
¶35 As noted, the Hansen court declared that "tort claims
shall accrue on the date the injury is discovered or with
reasonable diligence should be discovered, whichever occurs
first. All cases holding that tort claims accrue at the time of
the negligent act or injury are hereby overruled." Id. Given
the rigid construction of the rule in Terbush and the broad
holding in Hansen, Hansen might well be read as overruling
Terbush.
¶36 In this appeal, the defendants' wrongful death defense
rests in part on the continuing viability of the Terbush rule.
The defendants offer Genrich as evidence of "the continued force
of Terbush in non-medical malpractice wrongful death cases."
The relevant part of Genrich stated:
17
No. 2012AP1493
We acknowledge that some of our past decisions,
outside of the medical malpractice context, could be
interpreted to conclude that claims for damages due to
wrongful death accrue on the date of the decedent's
death. See, e.g., Terbush v. Boyle, 217 Wis. 636, 640,
259 N.W. 859 (1935), overruled on other grounds,
Pufahl v. Williams, 179 Wis. 2d 104, 111, 506
N.W.2d 747 (1993) (interpreting a former statute of
limitations consistent with an even earlier statutory
provision that provided, "'every such action shall be
commenced within two years after the death of such
deceased person'").
Genrich, 318 Wis. 2d 553, ¶32.
¶37 The defendants' reliance on Genrich is unavailing.
Genrich involved a death in a medical malpractice case. The
operative statute of limitations was Wis. Stat. § 895.55(1m)(a).
The spouse of the decedent sought to establish the death of the
decedent as the date of accrual under Wis. Stat. § 893.54(2).
The court determined that the statute did not apply in a medical
malpractice case. The court's references to Terbush in Genrich
were in a context distinguishing one fact situation from
another. The discussion did not determine whether accrual of a
wrongful death claim could occur after the decedent's death.
That decision was made in Hansen and Borello.
¶38 The defendants also argue that the court of appeals in
this case "scrapped the derivative nature of wrongful death
claims . . . . If a beneficiary's discovery can resurrect a
decedent's survival claim, then a wrongful death claim is not
truly derivative. Instead, it controls the survival claim." We
disagree.
¶39 Defendants concede that the discovery rule applies to
wrongful death claims. They contend, however, that the
18
No. 2012AP1493
discovery rule applies only to decedents——that no third party is
capable of discovering the necessary elements of a wrongful
death and establishing its date of accrual.
¶40 We turn to an example that surfaced in oral argument
to test the defendants' position. X is killed instantly by a
negligent driver in a hit and run accident. X's beneficiaries
have at least three years to file a wrongful death claim under
Wis. Stat. §§ 895.03, 895.04, and 895.54(2). Under these
hypothetical facts, X could not have brought a claim at the time
of his death because he did not know the identity of the
negligent driver. Thus, only a third party would be able to
discover the hit and run driver's identity to facilitate a
claim.
¶41 If X's personal representative or statutory
beneficiary filed the claim within three years of death, there
would be no dispute whatsoever about what the decedent knew at
the time of death——it would not matter.
¶42 There would, however, be an issue if the personal
representative or beneficiary did not file within the three-year
period following the decedent's death. And there would be an
issue if the personal representative or beneficiary did not
discover the identity of the hit and run driver until after the
three-year period.
¶43 Defendants cannot argue about how the information was
discovered if it was discovered and acted upon within three
years of death. They must contend that the date of accrual is
always the decedent's date of death and that the three-year
19
No. 2012AP1493
statute of limitations may not be triggered by a later
discovery.
¶44 We do not see this reasoning as consistent with the
compelling policy arguments made and adopted in Hansen. Under
the defendant's theory, if a deceased person's wrongful death
beneficiaries did not discover the identity of the hit and run
driver until a week after the three-year period ended, they
would be unable to recover any of the damages enumerated in Wis.
Stat. § 895.04(4), which are their damages. Conversely, the hit
and run driver would be rewarded for killing the victim instead
of badly injuring him, and he would not have to show that the
passage of time had created difficulties in defending the case.
This is not just.
¶45 We do not think the court of appeals was wrong when it
concluded that a wrongful death claim for a 1980 homicide
accrued when the decedent's killer was finally charged with the
crime in 2009. See McIntyre v. Forbes, No. 2013AP611,
unpublished slip op., ¶¶8, 10 (Wis. Ct. App. Dec. 19, 2013).
And we do not think that the court of appeals was wrong here.
¶46 None of this changes the derivative nature of a
wrongful death claim. A wrongful death action is a cause of
action for the benefit of designated classes of relatives,
"enabling them by statute to recover their own damages caused by
the wrongful death of the decedent." Miller, 170 Wis. 2d at 435
(citing Brown, 102 Wis. at 140). It is a new action. Id. at
436. However, the plaintiff in a wrongful death action has no
claim if the decedent would not have been able to "maintain an
20
No. 2012AP1493
action and recover damages" in his own right if he had not died.
Wis. Stat. § 895.03. What this means is that "if death had not
ensued," a deceased person would still have been alive and able
to discover all the elements of the tort that resulted in his
death. Thus, the beneficiary in a wrongful death action is
simply recognizing and establishing a claim that is based on the
claim that the decedent would have made if the decedent were
still alive.
¶47 We conclude that the discovery rule continues to apply
to wrongful death claims in the only way in which it reasonably
can: by permitting those claims to accrue "on the date the
injury is discovered or with reasonable diligence should be
discovered" by the wrongful death beneficiary, "whichever occurs
first." Hansen, 113 Wis. 2d at 560.
2. Survival Claims
¶48 As with wrongful death claims, the defendants do not
argue that the discovery rule does not apply to survival claims.
They argue that survival claims focus on discovery of an injury
by the decedent, not by a third party, and therefore that the
survival claims can accrue no later than death.
¶49 Contrary to a wrongful death action, "[t]he survival
action . . . is not a new cause of action. It is rather the
cause of action held by the decedent immediately before or at
death, now transferred to his personal representative."
Bartholomew, 293 Wis. 2d 38, ¶58 (quoting Keeton et al., supra,
§ 126, at 942-43). In other words, upon the death of the
decedent, the decedent's personal representative "stands in the
21
No. 2012AP1493
shoes" of the decedent to pursue any claims the decedent may
have had. See Merrill, 231 Wis. 2d at 554.
¶50 With respect to survival claims, the question facing
the court is whether the personal representative similarly
"stands in the shoes" of the decedent for purposes of the
discovery rule. We conclude that it does.
¶51 This court's opinion in Hansen was broad in its
language. It applied to all tort claims, including survival
claims——a fact the defendants do not dispute——and it was
grounded in public policy. We can discern no public policy
reason to require survival claims to accrue before death or upon
death but not after death that would outweigh the public policy
reasons for permitting survival claims to accrue upon reasonable
discovery after death. As Professor Dobbs states:
The discovery rule is now familiar in personal injury
statute of limitations cases. It logically applies as
well in survival actions, which are merely
continuations of the personal injury claim, although
there is some dissent. In the survival context, the
main question is whether suit was brought within the
prescriptive period after the decedent discovered or
should have discovered the facts considered relevant
in the particular jurisdiction.
2 Dan B. Dobbs, The Law of Torts § 379, 528-29 (2d ed. 2011)
(footnotes omitted).
¶52 The defendants point to two cases, Merrill, 231
Wis. 2d 546, and Lord v. Hubbell, Inc., 210 Wis. 2d 150, 563
N.W.2d 913 (Ct. App. 1997), which, they suggest, require a
different result.
22
No. 2012AP1493
¶53 Merrill involved a single-car accident in which Shawn
Merrill was seriously injured. Three days later, on November
26, 1994, Merrill succumbed to his injuries and died. On
November 26, 1997——three years to the day after his death——
Merrill's estate filed suit against the driver of the vehicle,
Joseph Jerrick, for pain and suffering and medical expenses
incurred by Merrill during the three days following the
accident. Jerrick moved for summary judgment, arguing that the
statute of limitations expired three years after the date of the
accident, not three years after the date of Merrill's death.
The circuit court agreed and granted summary judgment.
¶54 The court of appeals reversed and remanded. Id. at
558. The court determined that there was an issue of material
fact as to when Merrill's claim accrued because the record did
not indicate "when Merrill, with reasonable diligence, would
have discovered his injury, its cause and the defendants'
identities." Id. at 553. Given the physical and mental
handicaps suffered by Merrill in the accident, the court
determined that it was unclear whether Merrill was aware of what
happened. Thus, the court "conclude[d] that the estate's
survival claim accrued when Merrill with reasonable diligence
should have discovered his claim, here, no later than his date
of death when his claim vested with the estate's personal
representative." Id. at 557.
¶55 There are at least two explanations for the court's
"no later than his date of death" language. First, Merrill's
personal representative had all the information necessary for a
23
No. 2012AP1493
survival claim——the fact of the injury, the cause of the injury,
and the identity of the defendant——at the time of Merrill's
death. There was no issue about discovery after death and no
need to opine about discovery after death. The issue in the
case was whether "discovery" or accrual occurred before death or
at death. The language of the case should be read in that
light, since the next sentence reads: "The record leaves room
for controversy concerning when a reasonable person with the
same degree of mental and physical handicap and under the same
or similar circumstances as Merrill should have discovered his
injury, its cause, its nature and the defendants' identities."
Id. at 557. Second, the author of the opinion, Chief Judge
Thomas Cane, also authored the opinion in Miller v. Luther and
cited the Miller opinion in Merrill. The Miller opinion, dated
1992, stated that "a wrongful death action accrues at the time
of the decedent's death." Miller, 170 Wis. 2d at 436 (citing
Terbush, 217 Wis. 2d at 640). The language in Merrill may
simply echo the writing in Miller, restating a rule that has
become defunct.
¶56 For all practical purposes, Terbush was overruled by
Hansen and Borello, and it is expressly overruled here.
¶57 The second case is Lord. The defendants claim that
Lord proves that the focus in a survival claim is on the
circumstances of the decedent, rather than on the circumstances
of the third party who eventually brings the claim.
¶58 Lord did not involve a determination of when a claim
accrued. The case involved plaintiffs who were the minor
24
No. 2012AP1493
children of a decedent who was electrocuted while at work.
Lord, 210 Wis. 2d at 155. The plaintiffs argued that the
survival claim was tolled until they reached the age of
majority; the court of appeals disagreed. There was no
discussion of when the claim accrued in Lord——the accrual of the
claim was undisputed——so Lord does not assist us in determining
when a claim might have accrued in this case.
¶59 The defendants also contend that because the
plaintiffs are bringing suit in this case as special
administrators, not personal representatives, their personal
knowledge of the discovery of the decedents' injuries is even
less relevant. This argument misses the point. The question in
this case is whether the survival claims could have accrued
after the death of the decedents. Once those claims have
accrued, it does not matter which party brings the claim, as
long as that party has the authority to do so.
¶60 In other words, simply because a party brings a claim
as a special administrator does not necessarily mean that a
court will look for that party's discovery as special
administrator; the reference point after the death of a decedent
will need to be determined on a case-by-case basis. In many
cases, the court will look to the personal representative's
knowledge. In some cases, it might be appropriate to look to
the special administrator's knowledge. Sometimes, the
appropriate inquiry might even be into the knowledge of a party
that is neither the personal representative nor the special
administrator. The key is for the court to identify the party
25
No. 2012AP1493
whose knowledge is most relevant to meeting the goals set forth
in Hansen and Borello and determine what that party's knowledge
means in terms of the accrual of the claim. Once the claim has
accrued, it may then be brought by whomever has the authority to
bring it.
¶61 The defendants warn that a parade of horribles is sure
to follow if courts look to third parties when applying the
discovery rule. It is true that this application of the rule
could permit the occasional stale claim to proceed. However,
that risk is offset by the other protections in place to combat
stale claims.
¶62 In sum, because the personal representative "stands in
the decedent's shoes" for purposes of pursuing survival claims
on behalf of the decedent's estate, the discovery rule makes it
possible for those claims to accrue after the decedent's death.
Survival claims accrue "on the date the injury is discovered or
with reasonable diligence should be discovered" by either the
decedent or an appropriate third party (often the decedent's
personal representative), "whichever occurs first." Hansen, 113
Wis. 2d at 560.
¶63 We acknowledge that not all states apply the discovery
rule to wrongful death and survival claims in the way it is
applied here. However, we believe our decision reflects a clear
trend in the cases and is fully supported by the decisions in
Hansen and Borello.
D. Caveats for Plaintiffs
26
No. 2012AP1493
¶64 The broad applicability of the discovery rule does not
guarantee that plaintiffs receive an advantage in tort cases.
In most cases, plaintiffs will benefit from filing their claims
sooner rather than later. We emphasize the following points.
¶65 First, the discovery rule requires reasonable
diligence on the part of the injured party. This requirement
applies in various ways to decedents, personal representatives,
special administrators, and wrongful death beneficiaries. For
example, if a decedent, with reasonable diligence, should have
discovered his injury——including the identity of the defendant——
prior to his death, then any survival claims pursued on his
behalf by his estate would have accrued prior to his death.
Likewise, if the decedent's wrongful death beneficiary should
have discovered the identity of the defendant shortly after the
decedent's death, the beneficiary's actual knowledge will be
irrelevant——the claim will accrue.
¶66 The burden is on the defendant to raise the statute of
limitations as an affirmative defense. See Robinson v. Mount
Sinai Med. Ctr., 137 Wis. 2d 1, 16-17, 402 N.W.2d 711 (1987).
However, once the defense has been raised, the circuit court
will need to determine whether the plaintiff has, in fact,
satisfied the statute of limitations. See TJ Auto LLC v. Mr.
Twist Holdings LLC, 2014 WI App 81, ¶¶14-15, 355 Wis. 2d 517,
851 N.W.2d 831. This may require the court to make a factual
determination of when a claim accrued, including when the claim
reasonably should have been discovered. As a practical matter,
plaintiffs filing suit more than three years after a decedent's
27
No. 2012AP1493
death will often have to make a showing that the delay in their
discovery of the claim was reasonable.
¶67 Second, a plaintiff has the burden of proving his
case. That burden is not relaxed in older cases kept alive by
the discovery rule. A plaintiff will often find that proving
his case has become more difficult because time has passed.
¶68 Third, the fact that the discovery rule is grounded in
public policy considerations means that its application in a
specific case may be weighed against competing public policy
considerations. In the past, this court has identified six
public policy considerations that courts may use to limit
liability:
(1) the injury is too remote from the negligence; or
(2) the injury is too wholly out of proportion to the
culpability of the negligent tortfeasor; or (3) in
retrospect it appears too highly extraordinary that
the negligence should have brought about the harm; or
(4) because allowance of recovery would place too
unreasonable a burden on the negligent tortfeasor; or
(5) because allowance of recovery would be too likely
to open the way for fraudulent claims; or (6)
allowance for recovery would enter a field that has no
sensible or just stopping point.
Cole v. Hubanks, 2004 WI 74, ¶8, 272 Wis. 2d 539, 681 N.W.2d 147
(quoting Becker v. State Farm Mut. Auto. Ins. Co., 141
Wis. 2d 804, 817-18, 416 N.W.2d 906 (Ct. App. 1987)).
¶69 The fact that survival and wrongful death claims can
accrue after death does not mean that those claims can always be
pursued after an extended period of time. The discovery rule
notwithstanding, requiring alleged tortfeasors to defend against
very old claims may sometimes "place too unreasonable a burden"
28
No. 2012AP1493
on those parties. See id. The discovery rule does not state
that such claims will always proceed; it is up to the courts to
balance the equities in such cases.
¶70 We make no determination as to the balance of the
equities in this case. The record is not sufficiently developed
for us to determine whether the defendants should have to defend
against these claims. Rather, our decision is simply that it is
possible that the plaintiffs' claims accrued after the deaths of
the decedents.
E. Summary Disposition and Constitutional Claims
¶71 Finally, the defendants contend that the court of
appeals' decision to summarily reverse the circuit court's grant
of summary judgment violated their constitutional rights. The
defendants' argument on this point does not seem to be fully
developed, so we address it only briefly.
¶72 As the plaintiffs point out, the defendants' argument
presupposes that the court of appeals was incorrect. Because
the court of appeals was correct that the circuit court used the
wrong legal standard in its application of the discovery rule to
the facts of this case, the only question is whether the
defendants' constitutional rights were somehow violated by the
case being reversed summarily.
¶73 The court of appeals may dispose of a case summarily
by order if the panel unanimously agrees on the
decision; unanimously agrees the issues involve no
more than the application of well-settled rules of law
or the issues are decided on the basis of unquestioned
and controlling precedent or the issues relate to
sufficiency of evidence or trial court discretion and
29
No. 2012AP1493
the record clearly shows sufficient evidence or no
abuse of discretion; and the issues may be resolved by
merely stating the reasons for the decision without a
detailed analysis.
Wis. Ct. App. IOP VI-1 (Nov. 30, 2009).
¶74 In this case, the court of appeals determined that its
recent decision in Beaver, which presented the same legal
question and nearly identical facts, made this case appropriate
for summary disposition. See Christ, No. 2012AP1493, at 3.
Given the court's recent ruling in Beaver, we see no reason why
this case was not appropriate for summary disposition.
Accordingly, we hold that summary disposition did not violate
the defendants' constitutional rights.
IV. CONCLUSION
¶75 We hold that the discovery rule permits the accrual of
both survival claims and wrongful death claims to occur after
the date of the decedent's death. In the absence of a
legislatively created rule to the contrary, these claims accrue
when there is a "claim capable of present enforcement, a suable
party against whom it may be enforced, and a party who has a
present right to enforce it." Emp'rs Ins. of Wausau, 154
Wis. 2d at 231 (citation omitted). These criteria are not met
"until the plaintiff discovers, or in the exercise of reasonable
diligence should have discovered, not only the fact of injury
but also that the injury was probably caused by the defendant's
conduct or product." Borello, 130 Wis. 2d at 411.
¶76 In the circumstances of this case, the applicable
statute of limitations began to run when the survival claims and
30
No. 2012AP1493
wrongful death claims were discovered, provided that the
plaintiffs are able to show that they exercised reasonable
diligence in investigating and discovering their claims.
¶77 Given the procedural posture of this case, the
plaintiffs have not yet demonstrated that their claims accrued
less than three years before they filed their complaint.
Accordingly, we affirm the court of appeals and remand to the
circuit court for a determination as to whether the plaintiffs
have satisfied the statute of limitations under our accrual
rule.
By the Court.—The decision of the court of appeals is
affirmed.
31
No. 2012AP1493.pdr
¶78 PATIENCE DRAKE ROGGENSACK, C.J.
(dissenting). Wrongful death is a statutory claim that arises
upon death and does not belong to the deceased, but rather, to
the statutory beneficiaries. It is a claim for loss of support
and companionship, which the deceased person would have provided
if he or she had lived. Because of the nature of the claim,
death is always the "injury" in a wrongful death action. Stated
otherwise, it is this injury, i.e., death, that causes the
damages for loss of support and companionship that the statutory
beneficiaries sustain.1 Day v. Allstate Indem. Co., 2011 WI 24,
¶62, 332 Wis. 2d 571, 798 N.W.2d 199. Therefore, in regard to
an action for wrongful death, the "injury" that causes damages
is "discovered" upon the decedent's death. Terbush v. Boyle,
217 Wis. 636, 640, 259 N.W. 859 (1935) (explaining that an
"action for wrongful death accrues at time of death").
¶79 I also conclude that death vests a survival action,
which compensates the decedent for the pain, suffering and
financial loss he or she suffered prior to death, in the
decedent's estate. Upon vesting, both the claim and any
recovery belong to the estate, which has three years to proceed
thereon. Estate of Merrill v. Jerrick, 231 Wis. 2d 546, 557,
605 N.W.2d 645 (Ct. App. 1999) (concluding that "under the
1
Wisconsin Stat. § 895.04 (2005-06) lists potential
claimants in a wrongful death action. The 2013-14 version of
the statutes lists the same potential claimants. All subsequent
references to the Wisconsin Statutes are to the 2005-06 version
unless otherwise noted.
1
No. 2012AP1493.pdr
discovery rule" limitations period began to run no later than
the date of death whereon the survival claim vested in the
personal representative of decedent's estate).
¶80 This has been the law in Wisconsin for more than 80
years, which Hansen v. A.H. Robins Co., 113 Wis. 2d 550, 335
N.W.2d 578 (1983), did not change. Because the majority opinion
fails to acknowledge the import of the differences in the two
types of claims now before us and gives no reason why actions
arising under Wis. Stat. § 895.03 and Wis. Stat. § 895.01 should
not accrue on the date of death as they have in the past, and in
so doing substitutes complexity and uncertainty for well-settled
law, I respectfully dissent.
I. BACKGROUND
¶81 The decedents, upon whom all claims before us are
based, were former employees of Uniroyal Inc. They died, on
average, seven years before the July 13, 2006 complaint was
filed.2 Plaintiffs claimed decedents' deaths were caused by
benzene-containing petroleum products employed in the workplace.
They asserted wrongful death and survival claims. The circuit
court dismissed all claims based on the three-year bar set out
in Wis. Stat. § 893.54(2), as interpreted in Merrill and Miller
v. Luther, 170 Wis. 2d 429, 489 N.W.2d 651 (Ct. App. 1992). The
2
Mary Henneman died June 19, 1995; Mae Heath died June 1,
1996; William Beaulieu died July 17, 1997; Gary Radosevich died
February 26, 1999; Sharon Clark died May 17, 2001; Gail Christ
died December 15, 2002; and Victor Grosvold died December 30,
2003.
2
No. 2012AP1493.pdr
court of appeals summarily reversed and defendants petitioned
for review, which we granted.
II. DISCUSSION
A. Standard of Review
¶82 This case involves interpreting and applying Wis.
Stat. § 893.04, in regard to Wis. Stat. § 895.03, the wrongful
death statute and Wis. Stat. § 895.01(1)(am)7., the survival
action statute. Statutory interpretation and application
present questions of law that we independently review, while
benefitting from the decisions of the circuit court and the
court of appeals. Marder v. Bd. of Regents of the Univ. of Wis.
Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
B. Statutory Interpretation
¶83 We interpret a statute to determine its meaning.
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110. In so doing, we "assume
that the legislature's intent is expressed in the statutory
language" it chose. Id., ¶44. Where statutes have been
interpreted by Wisconsin appellate courts in the past, those
interpretations affect subsequent interpretations. Adams v.
Northland Equip. Co., 2014 WI 79, ¶30, 356 Wis. 2d 529, 850
N.W.2d 272 (concluding that prior interpretations of a statute
under consideration assist our current interpretation of the
same statutes). This principle is especially relevant when the
claim is based on a statute that is to be interpreted and
applied in the case before us and the legislature has not
amended the statute in a way that would discount our
3
No. 2012AP1493.pdr
interpretation. See Wenke v. Gehl Co., 2004 WI 103, ¶35, 274
Wis. 2d 220, 682 N.W.2d 405 (concluding that legislative
acquiescence subsequent to judicial interpretation of a statute
is "a presumption to aid in statutory construction").
C. Death-Related Actions
¶84 Actions "to recover damages for death caused by the
wrongful act, neglect or default of another" are barred if not
commenced within three years. Wis. Stat. § 893.54(2).
Wisconsin Stat. § 893.04 underlies the dispute before us because
it determines when that three-year period set out in § 893.54(2)
begins to run for wrongful death claims, Wis. Stat. § 895.04,
and survival actions, Wis. Stat. § 895.01. Section 893.04
provides:
Computation of period within which action may be
commenced. Unless otherwise specifically prescribed
by law, a period of limitation within which an action
may be commenced is computed from the time that the
cause of action accrues until the action is commenced.
It is the phrase, "cause of action accrues," from § 893.04 that
is our central concern because it determines when the three year
statute of limitations will bar commencement of wrongful death
and survival claims.
1. Wrongful death claims
¶85 Wrongful death is not a claim that existed at common
law; it was created by statute. Force v. Am. Family Mut. Ins.
Co., 2014 WI 82, ¶32, 356 Wis. 2d 582, 850 N.W.2d 866 (citing
Cogger v. Trudell, 35 Wis. 2d 350, 353, 151 N.W.2d 146 (1967)).
Therefore, our interpretation of Wis. Stat. § 893.04, setting
the period for commencement of an action, and Wis. Stat.
4
No. 2012AP1493.pdr
§ 895.03, the wrongful death statute, are interpretations of
legislative creations.
¶86 However, numerous Wisconsin appellate courts have
addressed wrongful death claims and the period of time during
which they may be commenced. For example, more than 80 years
ago, we discussed a wrongful death claim in Terbush. There, we
decided whether Terbush's3 wrongful death claim against Boyle was
barred by the then operative two-year statute of limitations.
Terbush, 217 Wis. at 637. To answer that question, we examined
Wis. Stat. § 330.15 (1931),4 which described the period during
which a wrongful death claim could be commenced as beginning
when "the cause of action has accrued." Id.
¶87 We posited the question to be answered as, "When did
the cause of action accrue (1) on the date of injury, (2) on the
date of [] death, or (3) when the administrator was appointed?"
Id. We explained that "'at the death of decedent, there are
real parties in interest who may procure the action to be
brought,'" id. at 640 (citation omitted), and that the statutory
term, "accrued," "evidences an intention to set a definite limit
to the period within which actions may be commenced." Id. We
then concluded that an "action for wrongful death accrues at
3
Terbush was the administrator of the estate of William
Haude. Terbush v. Boyle, 217 Wis. 636, 636, 259 N.W. 859
(1935).
4
Wisconsin Stat. § 330.15 (1931) is a predecessor statute
to Wis. Stat. § 893.04.
5
No. 2012AP1493.pdr
time of death and is barred if not commenced within two years
from that time." Id.
¶88 Many years later in Lord v. Hubbell, Inc., 210 Wis. 2d
150, 563 N.W.2d 913 (Ct. App. 1997), Judge Margaret Vergeront,
writing for the court of appeals, thoughtfully discussed actions
for wrongful death. Lord explained that a "wrongful death claim
belongs to the persons named in the statute [Wis. Stat.
§ 895.04] who have suffered pecuniary loss and loss of society
and companionship because of [a] person's death." Id. at 165.
¶89 It is important to understand that "wrongful death
beneficiaries seek recovery not for the injury suffered by the
deceased, but rather, for the loss sustained to the
beneficiaries because of the death." Day, 332 Wis. 2d 571, ¶62
(internal quotation marks and citation omitted). Stated
otherwise, it is the statutory beneficiaries who claim to be
injured in a wrongful death claim, not the person who has died.
Id. Therefore, it is death of the decedent that is the injury
that causes beneficiaries to suffer damages for which recovery
may be available in a wrongful death action. See Weiss v.
Regent Props., Ltd., 118 Wis. 2d 225, 230, 346 N.W.2d 766
(1984).
¶90 A wrongful death claim is derivative in the sense that
if the decedent did not have an actionable claim that his death
was "wrongful," i.e., tortious, a statutory beneficiary cannot
bring a subsequent wrongful death action. Miller, 170 Wis. 2d
at 437. For example, if the statute of limitations on a
decedent's personal injury claim had expired before decedent's
6
No. 2012AP1493.pdr
death, a claim for wrongful death will not lie. Lord, 210 Wis.
2d at 166. It is this derivative nature of a wrongful death
claim that has led courts to conclude that an action for
wrongful death accrues no later than the death of the decedent.
Furthermore, whether the decedent knew who was a cause of his
death does not affect the accrual of a beneficiary's wrongful
death claim because that claim arises, i.e., comes into being,
at the decedent's death. It is a new claim that was not in
existence before decedent's death. Miller, 170 Wis. 2d at 435-
36; see Lord, 210 Wis. 2d at 166.
¶91 Wisconsin Stat. § 893.04 and cases interpreting when
an action "accrues," in the context of wrongful death claims,
require dismissal of plaintiffs' wrongful death claims herein.
Let me explain. First, the injured party is the statutory
beneficiary in a wrongful death claim, not the deceased person.
Day, 332 Wis. 2d 571, ¶62. Wrongful death is a new cause of
action that arises upon death. Id. As Lord determined, those
persons named in the wrongful death statute "suffered pecuniary
loss and loss of society and companionship because of [a]
person's death." Lord, 210 Wis. 2d at 165. This is so because
death of a person deprived the beneficiaries of the financial
support and companionship of that person. Second, it is a
person's death that is the injury sustained by a wrongful death
beneficiary. Day, 332 Wis. 2d 571, ¶62 (explaining that it is
the decedent's death that is the injury to the beneficiary).
¶92 Third, each plaintiff's claim is caused by a
decedent's death. Weiss, 118 Wis. 2d at 230. Stated otherwise,
7
No. 2012AP1493.pdr
without death of a person, there is no possibility of a wrongful
death claim. Therefore, at the death of a person, the injury
and its cause of damages to statutory beneficiaries are known to
wrongful death plaintiffs.5 When an injury and its cause are
known, a tort claim has been discovered. That is, the claim has
accrued. Miller, 170 Wis. 2d at 436.
¶93 My conclusion is consistent with Hansen, in which we
first declared the discovery rule that affected when common law
tort claims accrue. We reasoned that "there are three points in
time when a tort claim may be said to accrue: (1) when
negligence occurs, (2) when a resulting injury is sustained, and
(3) when the injury is discovered." Id. at 554. In explaining
the discovery rule, we said, "[u]nder this rule, a claim does
not accrue until the injury is discovered or in the exercise of
reasonable diligence should be discovered." Id. at 556. We
concluded that under the discovery rule, "tort claims shall
accrue on the date the injury is discovered or with reasonable
diligence should be discovered, whichever occurs first." Id. at
560.
¶94 Until today, Wisconsin appellate courts have concluded
that a claim for wrongful death accrues no later than decedent's
death. Holifield v. Setco Indus., Inc., 42 Wis. 2d 750, 757,
168 N.W.2d 177 (1969) (concluding that an action for wrongful
5
If a potential beneficiary of a wrongful death claim is a
minor child, the period of limitations in which to bring the
action may be tolled by Wis. Stat. § 893.18(2)(a). Section
893.18(2)(a) does not apply to plaintiffs in this action.
8
No. 2012AP1493.pdr
death pursuant to Wis. Stat. § 895.03 must be brought within
three years of death). Our conclusion in Holifield, which
preceded Hansen, remains the operative law as Miller, which was
decided subsequent to Hansen, demonstrates. Miller, 170 Wis. 2d
at 436 (explaining that a wrongful death action brought under
§ 895.03 "accrues at the time of the decedent's death").
¶95 In the claims now before us, the injury, which is the
decedent's death, was discovered more than three years before
this lawsuit was filed. Therefore, consistent with Hansen, all
of the wrongful death claims accrued more than three years
before this lawsuit was filed and they must be dismissed. Id.
Hansen did not overrule Terbush, Holifield and other cases that
have followed their conclusions; but rather, Hansen's reasoning
is consistent with our prior decisions in regard to when a claim
for wrongful death accrues.
¶96 Appellate courts have established a clear, easy to
follow rule that the date on which a wrongful death action
accrues is the date of death. That rule is not dependent on
which Wis. Stat. § 895.04 plaintiff filed the wrongful death
action or whether his or her investigation of the personal
injury of the decedent was reasonable. The majority opinion
errs because it misperceives the nature of wrongful death claims
and, relying on public policy,6 it conflates discovery of a
decedent's claim for personal injury with the statutory claim of
wrongful death that arises upon death. In so doing, the
6
Majority op., ¶32.
9
No. 2012AP1493.pdr
majority opinion substitutes complexity and uncertainty for what
has been well-settled law.
2. Survival claims
¶97 As with claims for wrongful death, survival claims
have received frequent court attention. Survival claims are so
named because they belonged to the deceased person and they
survive his or her death.7 Wangen v. Ford Motor Co., 97 Wis. 2d
260, 310-11, 294 N.W.2d 437 (1980). Survival claims seek
compensation for personal injury damages due to the pain and
suffering and financial loss the deceased endured before death.
Merrill, 231 Wis. 2d at 549. Once decedent's estate is vested
with decedent's survival claim, both the cause of action and the
recovery belong to the estate. Day, 332 Wis. 2d 571, ¶61.
Accordingly, an estate cannot remain inactive and thereby
preserve its claim. The estate has an obligation to investigate
circumstances leading to the decedent's death. See Korkow v.
Gen. Cas. Co. of Wis., 117 Wis. 2d 187, 198, 344 N.W.2d 108
(1984) (explaining that the "purpose of statutes of limitations
is to ensure prompt litigation of claims and to protect
defendants from fraudulent or stale claims brought after
memories have faded or evidence has been lost.").
¶98 Merrill addressed the question of when a survival
claim accrues in light of the discovery rule announced in
Hansen. Merrill, 231 Wis. 2d at 551-52. Jerrick argued that
the claim accrued at the time of the auto accident when the
7
In contrast, wrongful death claims belong to the
beneficiaries identified in Wis. Stat. § 895.04.
10
No. 2012AP1493.pdr
tortfeasor was known. Id. at 553. Merrill countered that if
the injured person were in a coma, he might not know who injured
him. Id. at 556.
¶99 The court did not address the circumstance of an
injured person in a coma. Instead, the court reasoned that the
personal representative who was proceeding on Merrill's survival
claim "stands in the shoes of the decedent, and the estate is
entitled only to what the decedent would have had if the
decedent were living." Id. at 554 (internal quotation marks
omitted). Therefore, once the survival action vests in the
personal representative, a survival action accrues and a lawsuit
to bring forward that claim must be commenced within three
years. Id. at 557; Lord, 210 Wis. 2d at 169.
¶100 Here, all the survival claims vested in the decedents'
estates more than three years before the lawsuit was filed.
Because the estate took no action within three years, Wis. Stat.
§ 893.54(2) bars these survival actions. Lord, 210 Wis. 2d at
169. This well-settled rule of law has provided certainty and
has encouraged prompt settling of claims and has facilitated
closing of estates. The majority errs when it substitutes
complexity and uncertainty for well-settled law.
III. CONCLUSION
¶101 Wrongful death is a statutory claim that arises upon
death and does not belong to the deceased, but rather to the
statutory beneficiaries. It is a claim for loss of support and
companionship, which the deceased person would have provided if
he or she had lived. Because of the nature of the claim, death
11
No. 2012AP1493.pdr
is always the "injury" in a wrongful death action. Stated
otherwise, it is this injury, i.e., death, that causes the
damages for loss of support and companionship that the statutory
beneficiaries sustain.8 Day, 332 Wis. 2d 571, ¶62. Therefore,
in regard to an action for wrongful death, the "injury" that
causes damages is "discovered" upon the decedent's death.
Terbush, 217 Wis. at 640 (explaining that an "action for
wrongful death accrues at time of death").
¶102 I also conclude that death vests a survival action,
which compensates the decedent for pain, suffering and financial
loss he or she sustained prior to death, in the decedent's
estate. Upon vesting, both the claim and any recovery belong to
the estate, which has three years to proceed thereon. Merrill,
231 Wis. 2d at 557 (concluding that "under the discovery rule"
limitations period began to run no later than the date of death
whereon the survival claim vested in the personal representative
of decedent's estate).
¶103 This has been the law in Wisconsin for more than 80
years, which Hansen did not change. Because the majority
opinion fails to acknowledge the import of the differences in
the two types of claims now before us and gives no reason why
actions arising under Wis. Stat. § 895.03 and Wis. Stat.
§ 895.01 should not accrue on the date of death as they have in
the past, and in so doing substitutes complexity and uncertainty
for well-settled law, I respectfully dissent.
8
Wisconsin Stat. § 895.04 lists who may be a claimant in a
wrongful death action.
12
No. 2012AP1493.pdr
¶104 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
13
No. 2012AP1493.pdr
1