Adults
can still be 'children'
By
David Ziemer
david.ziemer@wislawjournal.com
June
11, 2007
| 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.”
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.
