2014 WI 82

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP2402 

COMPLETE TITLE: Hailey Marie-Joe Force, a/k/a Hailey Marie-Joe 

Dziewa, a 

minor, by her Guardian Ad Litem, Joseph J. 

Welcenbach,

 Plaintiff-Appellant,

The Estate of Billy Joe Force, by its Special 

Administrator,

 Plaintiff,

 v.

American Family Mutual Insurance Company, 

Jeffrey A. Brown 

and Regent Insurance Company,

 Defendants-Respondents.

------------------------------------------------

Mehgan Force, a minor, by her Guardian ad Litem, 

Jason 

Oldenburg, and Lauren Force, a minor, by her 

Guardian ad 

Litem, Jason Oldenburg,

 Plaintiffs-Appellants,

 v.

American Family Mutual Insurance Company and 

Jeffrey A. 

Brown,

 Defendants-Respondents,

Regent Insurance Company,

 Defendant.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: July 18, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: January 15, 2014

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Waukesha 

JUDGE: J. Mac Davis

JUSTICES:

CONCURRED: PROSSER, J., concurs. (Opinion filed.) 

DISSENTED: ROGGENSACK, ZIEGLER, GABLEMAN, JJJ., dissent. 

(Opinion filed.)

ZIEGLER, J., dissent. (Opinion filed.) 
2

NOT PARTICIPATING: 

ATTORNEYS:

For the plaintiffs-appellants, there were briefs by Joseph 

J. Welcenbach and Welcenbach Law Offices, S.C., Milwaukee, and 

Jason R. Oldenburg and The Previant Law Firm, S.C., Milwaukee, 

and oral argument by Joseph J. Welcenbach.

For the defendant-respondent American Family Mutual 

Insurance Company and Jeffrey A. Brown, there was a brief by 

James C. Ratzel, Leslie A. Schunk, and Ratzel & Associates, LLC, 

Brookfield, and oral argument by Leslie A. Schunk.

For the defendant-respondent Regent Insurance Company there 

was a brief by Donald H. Piper, Jon D. Monson, and Piper & 

Schmidt, Milwaukee, and oral argument by Donald H. Piper. 

An amicus curiae brief was filed by Susan R. Tyndell, Peter 

M. Young, D. James Weis, and Habush Habush & Rottier, S.C., 

Rhinelander, on behalf of the Wisconsin Association for Justice. 
2014 WI 82

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP2402

(L.C. No. 2011CV3151 & 2012CV417)

STATE OF WISCONSIN : IN SUPREME COURT

Hailey Marie-Joe Force, a/k/a Hailey Marie-Joe 

Dziewa, a minor, by her Guardian Ad Litem, 

Joseph J. Welcenbach,

 Plaintiff-Appellant,

The Estate of Billy Joe Force, by its Special 

Administrator,

 Plaintiff,

 v.

American Family Mutual Insurance Company, 

Jeffrey A. Brown and Regent Insurance Company,

 Defendants-Respondents.

-----------------------------------------------

Mehgan Force, a minor, by her Guardian ad 

Litem, Jason Oldenburg, and Lauren Force, a 

minor, by her Guardian ad Litem, Jason 

Oldenburg,

 Plaintiffs-Appellants,

 v.

American Family Mutual Insurance Company and 

Jeffrey A. Brown,

 Defendants-Respondents,

FILED

JUL 22, 2014

Diane M. Fremgen

Clerk of Supreme Court
Regent Insurance Company,

 Defendant.

APPEAL from a judgment of the Circuit Court for Waukesha 

County, J. Mac Davis, Judge. Reversed and remanded. 

¶1 SHIRLEY S. ABRAHAMSON, C.J. This is an appeal of a 

judgment of the circuit court for Waukesha County, J. Mac Davis, 

Judge, granting summary judgment in favor of Jeffrey Brown, 

American Family Mutual Insurance Company, and Regent Insurance 

Company (collectively the defendants). The part of the judgment 

at issue here dismissed the consolidated actions of Hailey 

Marie-Joe Force, Mehgan Force, and Lauren Force, collectively 

the minor children of Billy Joe Force, the deceased, against the 

defendants. 

¶2 The court of appeals certified the action to this 

court pursuant to Wis. Stat. § (Rule) 809.61. 

¶3 The issue before the court is: Can minor children 

recover for the wrongful death of their father under Wis. Stat. 

§ 895.04(2) (2011-12),1 when the deceased leaves behind a spouse 

who was estranged from the deceased and who is precluded from 

recovering for the wrongful death?

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.
No. 2012AP2402 

3

¶4 Linda Force, the deceased's spouse in the instant 

case, is precluded from recovery for her husband's wrongful 

death because the circuit court dismissed her claim, concluding 

that she has no compensable damages under the wrongful death 

statute; this dismissal of Linda Force's wrongful death claim 

was not appealed. 

¶5 In the instant case, Linda Force did not receive any 

financial support from the deceased from the time of their 

separation in 1997 to the deceased's death in 2008. Their long 

separation with no communication for many years was evidence 

that there was no interaction or affection between the spouses. 

The circuit court concluded that the unique facts of the instant 

case demonstrate that the deceased's spouse had no claim for 

damages for her husband's wrongful death under the wrongful 

death statutes. The dismissal of Linda Force's wrongful death 

claim is not before us. 

¶6 The defendants argue that because the deceased's 

spouse is still living, she is a "surviving spouse" under the 

statutes; that her recovery for the wrongful death of her 

husband is zero; and that consequently the deceased's minor 

children do not have any set-aside from the surviving spouse's 

recovery. 
No. 2012AP2402 

4

¶7 The defendants rely on the statutory hierarchy of 

beneficiaries created by Wis. Stat. § 895.04(2).2 The first 

class of beneficiaries is the surviving spouse, with a set-aside 

from his or her recovery for minor children "in recognition of 

the duty and responsibility of a parent to support minor 

children." If there is a "surviving spouse," other 

beneficiaries do not have a cause of action for wrongful death. 

If there is no "surviving spouse," the cause of action passes to 

the next beneficiary in the statutory hierarchy. 

¶8 We disagree with the defendants' interpretation of the 

statutes. We conclude that in order to avoid an absurd, 

unreasonable result contrary to the legislative purposes of the 

wrongful death statutes, Wis. Stat. §§ 895.03 and 895.04(2), we 

construe the statutes under the unique facts of the instant case 

to allow the minor children to recover even though the 

deceased's spouse in the instant case is alive and does not 

 

2 Steinbarth v. Johannes, 144 Wis. 2d 159, 164, 423 

N.W.2d 540 (1988) ("[Wisconsin Stat. §] 

895.04(2) . . . establishes a hierarchy of 

beneficiaries . . . ."); Cincoski v. Rogers, 4 Wis. 2d 423, 425, 

90 N.W.2d 784 (1958) ("The statutes . . . designate preferences 

according to the relationship to the deceased. . . . [T]he 

nonexistence of the preferred beneficiary or beneficiaries is 

essential to a right of action by or in behalf of other 

beneficiaries. The action must be brought by or for the 

wrongful death in the order of preference fixed by the 

statute."); Anderson v. Westfield Ins. Co., 300 F. Supp. 2d 726 

(W.D. Wis. 2002) ("[T]he ability to recover under Wisconsin's 

wrongful death statute is similar to intestate succession, 

namely, a claimant has standing only if no other beneficiary 

higher in the hierarchy has standing.").
No. 2012AP2402 

5

(according to the circuit court) recover any damages for the 

deceased husband's wrongful death. 

¶9 Our result comports with the dual legislative purposes 

of the wrongful death statutes: (1) to impose liability on the 

wrongdoer; and (2) to protect relational interests, especially 

the interests of the deceased's minor dependent children. 

¶10 The statutory interpretation advocated by the 

defendants would contravene these fundamental purposes of the 

wrongful death statutes by barring any wrongful death claim by 

Linda Force and the minor children, along with all lower-tier 

beneficiaries. 

¶11 The defendants call for the unfair, unreasonable 

outcome that the Wisconsin legislature sought to avoid by 

enacting the first wrongful death statute in 1857: the 

wrongdoer would be immune from liability and no compensation 

would be recovered by the deceased's relatives who would have 

recovered had the deceased lived. The interpretation of 

"surviving spouse" should avoid such unreasonable, absurd 

results. 

¶12 We examine the meaning of the phrase "surviving 

spouse" in Wis. Stat. § 895.04(2), in the unique fact scenario 

presented in this case.3 The words "surviving" and "spouse" are 

 

3 Wisconsin Stat. § 895.04 uses various phrases to refer to 

the primary beneficiary of a wrongful death recovery: "[i]f the 

deceased leaves surviving a spouse," "if no spouse or domestic 

partner survives," and "surviving spouse." All refer to the 

same person. We use the phrase "surviving spouse" to refer to 

each of these statutory phrases. The case law has done 

similarly.
No. 2012AP2402 

6

commonly used words. The text of the wrongful death statute 

does not define who is or is not a "surviving spouse." 

¶13 To interpret and apply the phrase "surviving spouse" 

in the wrongful death statutes, we examine the text of the 

wrongful death statutes using various interpretive aids. In 

interpreting words in a statutory text, we do more than focus on 

the dictionary definition of each word. Interpretive aids such 

as the legislative purpose, prior Wisconsin case law and case 

law from other jurisdictions, and statutory history help guide 

our interpretation of the phrase "surviving spouse." 

¶14 The legislative purposes are clear: impose liability 

on the tortfeasor and allow recovery by the deceased's relatives 

who would have recovered had the deceased lived. Our case law 

demonstrates that courts interpret the wrongful death statutes 

to apply to the unique fact situation presented by a case in 

order to meet the legislative purposes, rather than apply a 

strict literal interpretation of the phrase "surviving spouse." 

Sister state case law similarly recognizes that a lower-tier 

beneficiary can maintain a claim even if a higher-tier 

beneficiary is alive, when the unique facts would otherwise 

contravene the purposes of the wrongful death statutes. 

¶15 The statutory history of the wrongful death statutes 

demonstrates that the legislature has explicitly protected the 

rights of minor children to recover for wrongful death and left 

interpretation of the term "surviving spouse" to the courts in 

unique and specific fact situations. 
No. 2012AP2402 

7

¶16 Upon examining the statutory text with these 

interpretive aids, we conclude that the phrase "surviving 

spouse" in Wis. Stat. § 895.04(2) does not always simply mean 

any living spouse of the deceased. The meaning of the phrase 

"surviving spouse" has been elucidated by scrutinizing unique 

fact situations to define "surviving spouse" in accord with the 

legislative purposes of the wrongful death statutes, rather than 

considering only the literal meaning of the phrase "surviving 

spouse." 

¶17 For the reasons set forth, we interpret the phrase 

"surviving spouse" in the present case as not including Linda 

Force, the deceased's estranged spouse who, as a result of the 

circuit court's dismissal of her wrongful death claim (which was 

not appealed), is barred from recovery under Wis. Stat. 

§§ 895.03 and 895.04(2). If Linda Force is not a "surviving 

spouse" under the statute, the parties do not dispute that the 

minor children have a cognizable claim as lineal heirs. As 

lineal heirs of the deceased, the children would be first in 

line for any recovery for the wrongful death of their father. 

¶18 We conclude that the circuit court erred in granting 

the defendants summary judgment against the minor children and 

erred in dismissing the minor children's causes of action 

against the defendants for wrongful death. The minor children 

in the present case have a cause of action against the 
No. 2012AP2402 

8

defendants for wrongful death as if Linda Force were not alive 

at the death of the deceased.4

¶19 Accordingly, we reverse the judgment of the circuit 

court against the children and in favor of the defendants and 

remand the matter to the circuit court for further proceedings 

not inconsistent with this opinion. 

¶20 To assist the reader, here is a table of contents to 

this opinion:

Introduction: ¶¶1-20.

I. The facts and procedural history are not in dispute: 

¶¶21-26.

II. We review a grant of summary judgment independently of 

the circuit court, using the same methodology as the 

circuit court: ¶¶27-31.

III. The statutory text provides some support for the 

defendant's interpretation, but in unique fact 

situations, the defendant's interpretation may not be 

a reasonable one: ¶¶32-55. 

IV. The interpretation and application of the wrongful 

death statutes should be in accord with the explicit 

legislative purposes: (1) to render a wrongdoer liable 

when an injured party dies and (2) to compensate for 

the loss of a relational interest caused by the 

 

4 In light of our holding, we need not and do not address 

the children's equal protection constitutional claim that if 

Wis. Stat. § 895.04(2) bars their claim absent recovery by the 

surviving spouse, the statute is unconstitutional. 
No. 2012AP2402 

9

wrongful death, especially the interests of the minor 

children of the deceased: ¶¶56-68.

V. The Wisconsin case law and case law from other states 

reveal that "surviving spouse" does not always simply 

mean any spouse who survives the deceased: ¶¶69-110.

VI. The statutory history of the wrongful death statutes 

demonstrates that the legislature has explicitly 

protected the rights of minor children to recover for 

wrongful death and left interpretation of the phrase 

"surviving spouse" to the courts in unique and 

specific fact situations: ¶¶111-125.

Conclusion: ¶¶126-129.

I

¶21 The facts and procedural history of this case are 

undisputed for purposes of this appeal. Billy Joe Force, the 

deceased, was driving a motor vehicle for his employer. He died 

when his vehicle collided with a motor vehicle driven by Jeffrey 

Brown, the individual defendant. 

¶22 The deceased's estranged spouse, Linda Force, and his 

three nonmarital minor children, Hailey, Mehgan, and Lauren,5

each sought compensation from Jeffrey Brown, the individual 

defendant; American Family, the insurer of Brown's vehicle; and 

Regent Insurance Company, the insurer of Billy Joe Force's 

 

5 The complaint refers to Lauren Force as both "Lauryn" and 

"Lauren." We use "Lauren," as the circuit court, court of 

appeals, and briefs do.
No. 2012AP2402 

10

employer. The allegation is that Brown's negligence caused 

Billy Joe Force's death.6 

¶23 Billy Joe Force and Linda Force were married in 1995 

or 1996 and separated after six months of marriage. They never 

were legally separated or divorced. They did not have any 

children together. Billy Joe Force had three children with two 

women who were not his wife. Linda Force has no legal 

obligation to support these three minor children.

¶24 At the time of the motor vehicle accident in 2006, 

Linda Force lived in New York; Billy Joe Force lived in 

Wisconsin. During the five years before his death in 2006, 

Linda Force had no contact with Billy Joe Force. Billy Joe 

 

6 Linda Force, the estranged spouse of the deceased, and 

Hailey Marie-Joe Force, Billy's youngest daughter, initiated one 

action seeking wrongful death damages. 

Linda Force raised claims for wrongful death both as a 

surviving spouse and as special administrator for the estate of 

the deceased. 

Hailey made two claims: first, that she was entitled to 

"an independent, cognizable claim for relief of her own" for 

damages arising out of the death of her father; and second, that 

in the absence of an independent claim, she was entitled to a 

"statutorily protected interest under [Wis. Stat.] Sec. 895.04 

as a child of the deceased with whose support the deceased was 

legally charged." 

Mehgan and Lauren initiated their own action, seeking 

wrongful death damages. They claimed that the defendant 

driver's negligence deprived them of their father's "aid, wages, 

economic benefits, assistance, society, comfort and 

companionship." They did not claim an offset from the recovery 

of Linda Force.

The cases were consolidated by the circuit court, pursuant 

to Wis. Stat. § 895.04(3), on March 30, 2012. 
No. 2012AP2402 

11

Force never provided any pecuniary support to Linda Force from 

1997 until his death in 2008.

¶25 The circuit court granted summary judgment to the 

defendants, concluding, inter alia, that Linda Force, as a 

surviving, estranged spouse, had no compensable damages under 

the wrongful death statute and that none of the three children 

had a cause of action for wrongful death.7

¶26 The three minor children appealed the dismissal of 

their actions. Linda Force has not appealed the dismissal of 

her personal claim for damages for wrongful death. 

II

¶27 We review a grant of summary judgment independently of 

the circuit court, using the same methodology as the circuit 

court.8 Summary judgment is appropriate when no genuine issue of 

material fact exists and the moving party is entitled to 

judgment as a matter of law.9 

¶28 The material facts are undisputed in the present case 

and the resolution of the dispute between the three minor 

children and the defendants turns on a question of law, that is, 

the interpretation and application of the wrongful death 

statutes to these undisputed facts. The interpretation and 

application of a statute to undisputed facts are ordinarily 

 

7 A survival claim by the estate of the deceased is not 

before us.

8 Park Bank v. Westburg, 2013 WI 57, ¶36, 348 Wis. 2d 409, 

832 N.W.2d 539. 

9 Wis. Stat. § 802.08(2). 
No. 2012AP2402 

12

questions of law that this court determines independently of the 

circuit court, although it benefits from the circuit court's 

analysis.10 We also benefit from the analysis of the court of 

appeals in its certification memorandum in the present case.11

¶29 To interpret and apply the phrase "surviving spouse" 

used in the wrongful death statute, we examine the text of the 

statute. 

¶30 In examining the statutory text, however, we do more 

than focus on a dictionary definition of each word. Words are 

given meaning to avoid absurd, unreasonable, or implausible 

results and results that are clearly at odds with the 

legislature's purpose.12 We scrutinize the words in view of the 

 

10 Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶21, 

350 Wis. 2d 509, 835 N.W.2d 226.

11 Lornson v. Siddiqui, 2007 WI 92, ¶13, 302 Wis. 2d 519, 

735 N.W.2d 55.

12 Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶10, 

232 Wis. 2d 587, 592, 605 N.W.2d 515; Seider v. O'Connell, 2000 

WI 76, ¶32, 236 Wis. 2d 211, 612 N.W.2d 659; Teschendorf v. 

State Farm Ins. Cos., 2006 WI 89, ¶¶15, 18, 32, 293 Wis. 2d 123, 

717 N.W.2d 258.
No. 2012AP2402 

13

purpose of the statute.13 We consider the meaning of words in 

the context in which they appear.14 The definition of a word or 

phrase can vary in different circumstances.15 Different fact 

scenarios may require different interpretations of the text, 

because words cannot anticipate every possible fact situation.16 

"[R]easonable minds can differ about a statute's application 

 

13 State v. Hanson, 2012 WI 4, ¶17, 338 Wis. 2d 243, 255, 

808 N.W.2d 390, 396 ("Context and [statutory] purpose are 

important in discerning the plain meaning of a statute. We 

favor an interpretation that fulfills the statute's purpose.") 

(citations omitted); Klemm v. Am. Transmission Co., LLC, 2011 WI 

37, ¶18, 333 Wis. 2d 580, 798 N.W.2d 223 ("An interpretation 

that fulfills the purpose of the statute is favored over one 

that undermines the purpose."); Lagerstrom v. Myrtle Werth 

Hosp.-Mayo Health System, 2005 WI 124, ¶51, 285 Wis. 2d 1, 700 

N.W.2d 201 (examining "legislative goals" to interpret a 

statute); Alberte, 232 Wis. 2d 587, ¶10 (courts need not adopt a 

literal or usual meaning of a word when acceptance of that 

meaning would thwart the obvious purpose of the statute); United 

Wis. Ins. Co. v. LIRC, 229 Wis. 2d 416, 425-26, 600 N.W.2d 186 

(Ct. App. 1999) ("Fundamental to an analysis of any statutory 

interpretation is the ascertainment and advancement of the 

legislative purpose."). 

14 Alberte, 232 Wis. 2d 587, ¶10 ("While it is true that 

statutory interpretation begins with the language of the 

statute, it is also well established that courts must not look 

at a single, isolated sentence or portion of a sentence, but at 

the role of the relevant language in the entire statute."); 

Seider, 236 Wis. 2d 211, ¶43 (contextual approach is not new); 

Klemm, 333 Wis. 2d 580, ¶18 ("The statutory language is examined 

within the context in which it is used.").

15 Sauer v. Reliance Ins. Co., 152 Wis. 2d 234, 241, 448 

N.W.2d 256 (Ct. App. 1989).

16 Northrop v. Opperman, 2011 WI 5, ¶22 n.8, 331 

Wis. 2d 287, 795 N.W.2d 719; Teschendorf, 293 Wis. 2d 123, ¶20.
No. 2012AP2402 

14

when the text is constant but the circumstances to which the 

text may apply are kaleidoscopic."17

¶31 We also examine our case law interpreting the statute18

and the statutory history of the statute to determine the 

meaning of words.19 

III

¶32 This court has declared that there is no common-law 

action for wrongful death; the right to bring suit is purely 

statutory.

20

 

17 Seider, 236 Wis. 2d 211, ¶43.

18 Nowell v. City of Wausau, 2013 WI 88, ¶21, 351 Wis. 2d 1, 

838 N.W.2d 852; Juneau County Star-Times v. Juneau County, 2013 

WI 4, ¶66, 345 Wis. 2d 122, 824 N.W.2d 457; State v. Davison, 

2003 WI 89, ¶61, 263 Wis. 2d 145, 666 N.W.2d 1.

19 "Statutory history encompasses the previously enacted and 

repealed provisions of a statute. By analyzing the changes the 

legislature has made over the course of several years, we may be 

assisted in arriving at the meaning of a statute. Therefore, 

statutory history is part of the context in which we interpret 

the words used in a statute." Richards v. Badger Mut. Ins. Co., 

2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581 (citations 

omitted). See, e.g., LaCount v. General Cas. Co., 2006 WI 14, 

¶31, 288 Wis. 2d 358, 709 N.W.2d 418; VanCleve v. City of 

Marinette, 2003 WI 2, ¶6, 258 Wis. 2d 80, 655 N.W.2d 113; State 

v. Byers, 2003 WI 86, ¶¶22-27, 263 Wis. 2d 113, 665 N.W.2d 729; 

Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 980-84, 542 

N.W.2d 148 (1996).

20 Cogger v. Trudell, 35 Wis. 2d 350, 353, 151 N.W.2d 146 

(1967). We need not re-examine this issue in the instant case.

For a discussion of a common-law action for wrongful death, 

see, e.g., Restatement (Second) of Torts, § 925 cmt. k; John 

Fabian Witt, From Loss of Services to Loss of Support: The 

Wrongful Death Statutes, the Origins of Modern Tort Law, and the 

Making of the Nineteenth-Century Family, 25 Law & Soc. Inquiry 

717 (2000); Wex S. Malone, The Genesis of Wrongful Death, 17 

Stan. L. Rev. 1043 (1965). 
No. 2012AP2402 

15

¶33 We turn first to the text of the wrongful death 

statutes, Wis. Stat. §§ 895.03 and 895.04(2). 

¶34 Wisconsin's wrongful death statute was first enacted 

in 1857.21 The present statute retains the 1857 statutory 

framework: 

 

21 The 1857 statute, ch. 71, Laws of 1857, had two sections, 

the first explaining the prerequisites for a claim, and the 

second explaining who may bring the action and who may recover 

damages:

§ 1. That whenever the death of a person shall be 

caused by a wrongful act, neglect or default, and the 

act, neglect or default is such as would (if death had 

not ensued) have entitled the party injured to 

maintain an action and recover damage in respect 

thereof; then and in every such case, the person who, 

or the corporation which would have been liable, if 

death had not ensued, shall be liable to an action for 

damages, notwithstanding the death of the person 

injured, and although the death may have been 

occasioned under such circumstances as constitute an 

indictable offence; Provided, That such action shall 

be brought for a death caused in this State, and in 

some court established by the constitution and laws of 

the same.

§ 2. Every such action shall be brought by and in the 

name of the personal representative of such deceased 

person; and the amount recovered shall belong and be 

paid over to the husband or widow of such deceased 

person, if such relative survive him or her; but if no 

husband or widow survive the deceased, the amount 

recovered shall be paid over to his or her lineal 

descendants, and to his or her lineal ancestors in 

default of such descendants; and in every such action 

the jury may give such damages, not exceeding $5,000, 

as they shall deem fair and just in reference to the 

pecuniary injury resulting from such death to the 

relatives of the deceased specified in this section; 

Provided, Every such action shall be commenced within 

two years after the death of such deceased person.
No. 2012AP2402 

16

• The statute states the conditions under which a 

wrongdoer is liable for wrongful death. Wis. Stat. 

§ 895.03. 

• The statute lists the persons who may bring a wrongful 

death action. Wis. Stat. § 895.04(1). 

• The statute enumerates the persons to whom the amount 

recovered belongs. Wis. Stat. § 895.04(2).

¶35 Sections 895.03 and 895.04 are viewed in pari materia, 

having been created together and relating to the same topic.22

¶36 Wisconsin Stat. § 895.03 states the conditions under 

which a wrongdoer is liable for wrongful death. It is 

straightforward, clear, and easy to read. It is largely 

unchanged since the creation of the wrongful death cause of 

action in 1857. 

¶37 The legislature has declared in every iteration of the 

wrongful death statute since 1857, including Wis. Stat. 

§ 895.03, that "in every such case" in which a wrongdoer has 

caused death, the wrongdoer is "liable to an action for damages" 

as if death had not ensued. Thus, the legislature has 

proclaimed that a wrongdoer should be liable for a wrongful 

death when the injured party could have maintained an action and 

recovered damages from the defendant, had the injured party 

survived. 

¶38 Wisconsin Stat. § 895.03 states in full:

 

22 See Waranka v. Wadena, 2014 WI 28, ¶3, 353 Wis. 2d 619, 

847 N.W.2d 324.
No. 2012AP2402 

17

Whenever the death of a person shall be caused by a 

wrongful act, neglect or default and the act, neglect 

or default is such as would, if death had not ensued, 

have entitled the party injured to maintain an action 

and recover damages in respect thereof, then and in 

every such case the person who would have been liable, 

if death had not ensued, shall be liable to an action 

for damages notwithstanding the death of the person 

injured; provided, that such action shall be brought 

for a death caused in this state (emphasis added).

¶39 No one disputes that the conditions set forth in Wis. 

Stat. § 895.03 that make a wrongdoer liable for wrongful death 

are met in the instant case. 

¶40 Wisconsin Stat. 895.04(1) lists the persons who may 

bring a wrongful death action:

(1) An action for wrongful death may be brought by the 

personal representative of the deceased person or by 

the person to whom the amount recovered belongs.23

¶41 In the present case, the wrongful death actions were 

brought by the personal representative and by persons claiming 

to be the persons to whom the amount recovered for wrongful 

death belongs. No one disputes that the proper persons have 

brought the instant actions.

¶42 Wisconsin Stat. § 895.04(2) enumerates the persons to 

whom the amount recovered for wrongful death belongs. Unlike 

Wis. Stat. §§ 895.03 and 895.04(1), § 895.04(2) is a dense and 

 

23 Allowing someone other than the personal representative 

to assert a claim was added to the statute in 1913. Ch. 186, 

Laws of 1913. See also § 1, ch. 548, Laws of 1949 (permitting 

an individual to bring a wrongful death action even if the 

individual would also have a survival claim as administrator of 

the estate; amendment supersedes Schilling v. Chicago, N. Shore 

& Milwaukee R. Co., 245 Wis. 2 173, 13 N.W.2d 594 (1944)). 
No. 2012AP2402 

18

difficult statute to read and understand. It has evolved to its 

present language by repeated legislative amendments.

¶43 Wisconsin Stat. § 895.04(2) creates a hierarchy of 

persons to whom the amount recovered belongs.24 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." The second class is lineal 

heirs.

¶44 Wisconsin Stat. § 895.04(2) reads as follows:

(2) If the deceased leaves surviving a spouse or 

domestic partner under ch. 770 and minor children 

under 18 years of age with whose support the deceased 

was legally charged, the court before whom the action 

is pending, or if no action is pending, any court of 

record, in recognition of the duty and responsibility 

of a parent to support minor children, shall determine 

the amount, if any, to be set aside for the protection 

of such children after considering the age of such 

children, the amount involved, the capacity and 

integrity of the surviving spouse or surviving 

domestic partner, and any other facts or information 

it may have or receive, and such amount may be 

impressed by creation of an appropriate lien in favor 

of such children or otherwise protected as 

 

24 Steinbarth, 144 Wis. 2d at 164 ("[Wisconsin Stat. §] 

895.04(2) . . . establishes a hierarchy of 

beneficiaries . . . ."); Cincoski, 4 Wis. 2d at 425 ("The 

statutes . . . designate preferences according to the 

relationship to the deceased. . . . [T]he nonexistence of the 

preferred beneficiary or beneficiaries is essential to a right 

of action by or in behalf of other beneficiaries. The action 

must be brought by or for the wrongful death in the order of 

preference fixed by the statute."); Anderson, 300 F. Supp. 2d at

729 ("[T]he ability to recover under Wisconsin's wrongful death 

statute is similar to intestate succession, namely, a claimant 

has standing only if no other beneficiary higher in the 

hierarchy has standing."). 
No. 2012AP2402 

19

circumstances may warrant, but such amount shall not 

be in excess of 50% of the net amount received after 

deduction of costs of collection.25 If there are no 

such surviving minor children, the amount recovered 

shall belong and be paid to the spouse or domestic 

partner of the deceased; if no spouse or domestic 

partner survives, to the deceased's lineal heirs as 

determined by s. 852.01; if no lineal heirs survive, 

to the deceased's brothers and sisters.26 If any such 

relative dies before judgment in the action, the 

relative next in order shall be entitled to recover 

for the wrongful death.27 A surviving nonresident 

alien spouse or a nonresident alien domestic partner 

 

25 This provision was adopted in substantially this form in 

1962, making the surviving spouse the primary beneficiary and 

granting the minor children a set-aside. See ch. 649, Laws of 

1961. See ¶¶111-125, infra, which discuss the statutory history 

of this section.

Changes subsequent to the 1962 amendment added additional 

beneficiaries to Wis. Stat. § 895.04(2) but did not 

substantially change the structure of the provision. For 

example, the legislature added the words "and domestic partners" 

alongside the word "spouse." 2009 Wis. Act 28, § 3269.

26 See chs. 164, 581, Laws of 1907 (adding "but if no 

husband or widow or lineal descendant or ancestor survive the 

deceased, the amount recovered shall be paid over to the 

brothers and sisters"). Brothers and sisters were added 

apparently in response to Brown v. Chicago & N.W. Ry. Co., 102 

Wis. 137, 77 N.W. 748 (1898) (because the statute, Wis. Stat. 

§ 4256 (1898), permitted recovery only for the spouse or lineal 

descendants and ancestors of the deceased, brothers and sisters 

could not recover). 

27 See § 1, ch. 263, Laws of 1931. 

The provision relating to the death of a relative before 

judgment in a wrongful death action was added, apparently in 

response to Woodward v. Chicago & N.W. Ry. Co., 23 Wis. 400 

(1868) (holding that the wrongful death action terminated when 

deceased's surviving spouse died before judgment). See Eleason

v. Western Cas. & Sur. Co., 254 Wis. 134, 140, 35 N.W.2d 301 

(1948) (holding that the 1931 amendment controlled over previous 

cases holding that wrongful death actions terminated with the 

death of the holder of the claim). 
No. 2012AP2402 

20

under ch. 770 and minor children shall be entitled to 

the benefits of this section.28 In cases subject to s. 

102.29 this subsection shall apply only to the 

surviving spouse's or surviving domestic partner's 

interest in the amount recovered. If the amount 

allocated to any child under this subsection is less 

than $10,000, s. 807.10 may be applied. Every 

settlement in wrongful death cases in which the 

deceased leaves minor children under 18 years of age 

shall be void unless approved by a court of record 

authorized to act hereunder (emphasis and footnotes 

added).

¶45 There is a difference between a wrongful death claim 

and a survival claim. A wrongful death claim, as we explain 

above, compensates the deceased's relatives for the damages they 

suffer as a result of the deceased's death.29 A survival claim 

 

28 See § 1, ch. 226, Laws of 1911 (amending the statute to 

state explicitly that "non-resident alien surviving relatives 

shall be entitled to the benefits of this section"). The 1911 

provision relating to aliens was apparently inserted in response 

to McMillan v. Spider Lake Sawmill & Lumber Co., 115 Wis. 332, 

91 N.W. 979, 980-81 (1902), in which the court held that 

nonresident alien citizens of foreign countries were not 

entitled to recover under the wrongful death statute. The 

spouse in McMillan was a Canadian citizen and did not reside in 

the United States. The McMillan court asserted that the 

legislature did not intend this cause of action to convey 

benefits and recovery to nonresidents. 

Three years later, the legislature again amended the 

statute to limit nonresident alien relatives to a surviving 

spouse and minor children, stating that only "a nonresident 

alien surviving wife and minor children shall be entitled to the 

benefits of this section." § 1, ch. 35, Laws of 1915.

29 Wisconsin Stat. § 895.04(4) provides as follows:

(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 
No. 2012AP2402 

21

compensates the estate of the deceased (or persons who paid 

expenses on behalf of the estate) for damages suffered by the 

deceased between the time of the injury and the time of death.30 

¶46 The personal representative may bring both a wrongful 

death claim and a survival claim, but the beneficiaries 

receiving the damages recovered under the two claims may be 

different.31 "[T]he right to sue under the wrongful death 

statute must be distinguished from the ownership of the 

recovery. Because the [wrongful death] action is granted by 

 

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.

30 "The survival action is brought by the representative of 

the deceased for personal injury damages suffered by the 

deceased prior to his death. The damages accrue to the estate 

of the deceased." Prunty v. Schwantes, 40 Wis. 2d 418, 422, 162 

N.W.2d 34 (1968). 

See also Wangen v. Ford Motor Co., 97 Wis. 2d 260, 312, 294 

N.W.2d 437, 463 (1980) (quoting Koehler v. Waukesha Milk Co., 

190 Wis. 52, 56, 208 N.W. 901 (1926)):

The cause of action for the [deceased]'s pain and 

suffering which . . . passes to a decedent's estate[ ] 

is separate and distinct from this wrongful death 

action. The estate's action is for the wrong to the 

injured person; the wrongful death action belongs to 

named beneficiaries for their pecuniary loss; the 

latter action begins where the former ends. "It is 

not a double recovery, but a recovery for a double 

wrong." 

31 Wangen, 97 Wis. 2d at 310.
No. 2012AP2402 

22

statute, ownership of the recovery is limited to the 

beneficiaries designated under the statute."32 

¶47 In order to determine whether a beneficiary exists who 

may recover under a wrongful death claim, the court has 

frequently grappled with disputes regarding the interpretation 

of the wrongful death statute's hierarchical beneficiary 

structure.33 The legislature did not anticipate numerous fact 

 

Wisconsin Stat. 895.04(5) provides:

(5) If the personal representative brings the action, 

the personal representative may also recover the 

reasonable cost of medical expenses, funeral expenses, 

including the reasonable cost of a cemetery lot, grave 

marker and care of the lot. If a relative brings the 

action, the relative may recover such medical 

expenses, funeral expenses, including the cost of a 

cemetery lot, grave marker and care of the lot, on 

behalf of himself or herself or of any person who has 

paid or assumed liability for such expenses.

32 Weiss v. Regent Props., Ltd., 118 Wis. 2d 225, 230, 346 

N.W.2d 766 (1984) (citations omitted) (citing Nichols v. U.S. 

Fid. & Guar. Co., 13 Wis. 2d 491, 497, 109 N.W.2d 131 (1961)). 

See also 2 The Law of Damages in Wisconsin § 16.15 at 16-18 

(Russell M. Ware et al. eds. 2014) ("Because the purpose of 

allowing damages for wrongful death is to compensate the 

deceased's relatives for their loss, wrongful death damages do 

not become a part of the deceased's estate."). 

33 The courts have reached various outcomes based on the 

facts of each case.

Cases holding for the lower-tier beneficiary to recover:

• Steinbarth v. Johannes, 144 Wis. 2d 159, 423 

N.W.2d 540 (1988) (holding that a spouse who 

intentionally killed the deceased is not a 

"surviving spouse" and that the children hold the 

claim as lineal heirs);
No. 2012AP2402 

23

 

• Krause v. Home Mut. Ins. Co., 14 Wis. 2d 666, 112 

N.W.2d 134 (1961) (holding that although the 

spouse died shortly after the deceased, the 

children held the claim, because satisfying the 

purposes of the statute required that the phrase 

"surviving spouse" not mean the spouse of the 

deceased who is living at the time of the death 

of the deceased, but rather the "spouse of the 

deceased living when the action was commenced");

• Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33 

(1940) (holding that although the children did 

not have an independent claim of action against 

their father for the wrongful death of their 

mother, when the mother herself died, the 

wrongful death that claim she held went to her 

children).

Cases holding against the lower-tier beneficiary:

• Cogger v. Trudell, 35 Wis. 2d 350, 359, 151 

N.W.2d 146 (1967) (holding that the deceased's 

spouse who negligently killed the spouse is a 

surviving spouse, and that their children have no 

claim);

• Hanson v. Valdivia, 51 Wis. 2d 466, 475, 187 

N.W.2d 151 (1971) (holding that when the 

deceased's spouse alleged to be responsible for 

the death survived, the minor surviving children 

"do not have a cause of action for the wrongful 

death of one of their parents when the [deceased] 

is survived by his or her spouse, and the fact 

that the surviving spouse was responsible for the 

death does not create a new cause of action in 

the children");

• Woodward v. Chicago & N.W. Ry. Co., 23 Wis. 400 

(1868) (holding that when the deceased's husband 

died while pursuing a wrongful death claim 

against the defendant, the husband's wrongful 

death claim cannot survive his death), superseded 

by statute as stated in Eleason v. Western Cas. & 

Sur. Co., 254 Wis. 134, 139, 35 N.W.2d 301 

(1948).
No. 2012AP2402 

24

scenarios in its enactment of the wrongful death statute, and 

the courts have had to fill the gaps in the statute. 

¶48 To determine the meaning of the phrase "surviving 

spouse" in the unique fact scenario of the instant case, we must 

fill the gap in the statute. In enacting Wis. Stat. 

§ 895.04(2), the legislature did not anticipate the fact 

scenario presented in the instant case in which a long-time 

estranged spouse does not obtain a divorce, has no recoverable 

damages on the death of the deceased husband, and has no legal 

obligation to support nonmarital minor children of the deceased. 

¶49 In referring to a "surviving spouse" and creating a 

hierarchical structure of beneficiaries in the wrongful death 

statute, the legislature envisioned an intact marriage with 

minor marital children whom both the deceased and the deceased's 

spouse were obliged to support. Indeed, "[a] careful reading of 

the entire section [895.04(2)] makes it clear that the trial 

court in an attempt to protect the children must work from the 

amount recovered by the spouse who is charged with the support 

of the minor children."

34 

¶50 The defendants argue that the statutory hierarchy of 

beneficiaries bars the minor children in the present case from 

asserting a claim for wrongful death because the deceased left a 

 

• Bowen v. Am. Family Ins. Co., 2012 WI App 29, 

¶19, 340 Wis. 2d 232, 811 N.W.2d 887 (holding 

that a primary beneficiary under the wrongful 

death statutes could not waive his claim and pass 

it on to a secondary beneficiary).

34 Cogger, 35 Wis. 2d at 358.
No. 2012AP2402 

25

living spouse, and the surviving spouse, Linda Force, cannot 

claim any damages for wrongful death according to the circuit 

court.

¶51 The defendants rest their position on a literal 

interpretation of the phrase "surviving spouse": 

• Linda Force is the spouse of the deceased; 

• she is still living; 

• as an estranged spouse she cannot, according to the 

circuit court's dismissal of her claim, recover 

damages any for pecuniary loss and loss of society and 

companionship;

• the minor children's share is limited under the 

statute to a set-aside from the surviving spouse's 

recovery; and 

• because Linda Force's recovery is zero, the minor 

children's set-aside is also zero.

¶52 The defendants' reading of the statute is not without 

support in the text, but the defendants' interpretation is not 

necessarily a reasonable reading of the phrase "surviving 

spouse" in unique fact situations. 

¶53 First, the statute does not define who is or is not a 

surviving spouse.35 

¶54 Second, the text of Wis. Stat. § 895.04(2) does not 

expressly state that minor children are barred from recovery

when a surviving spouse fails to recover any damages. Rather, 

 

35 Steinbarth, 144 Wis. 2d 159.
No. 2012AP2402 

26

§ 895.04(2) provides that minor children get a set-aside from 

the surviving spouse's recovery and recover as lineal heirs if 

no surviving spouse exists. 

¶55 A study of the text demonstrates that we are unable to 

discern the answer to our inquiry in the present case by a mere 

examination of the words of Wis. Stat. § 895.04(2) isolated from 

interpretive aids. We next look for assistance from the 

legislative pronouncement of the purposes of the wrongful death 

statutes.

IV

¶56 The minor children's position that they should recover 

under the wrongful death statutes is supported by the 

legislative purposes advanced by Wis. Stat. §§ 895.03 

and 895.04(2). 

¶57 The legislature has declared in Wis. Stat. §§ 895.03 

and 895.04(2) that the purposes of the wrongful death statutes 

are (1) to hold wrongdoers liable for damages upon death of an 

injured person, and (2) to compensate relatives of the injured 

party for the losses caused by the wrongful act. A holding that 

the minor children cannot maintain a wrongful death claim in the 

instant case would contravene those fundamental purposes. The 

wrongdoers would escape liability and the minor children would 

not be compensated for their losses. 

¶58 The purposes of the wrongful death statutes have 

existed since the law's enactment in 1857. The wrongful death 
No. 2012AP2402 

27

statute was enacted to correct a perceived injustice at common 

law providing no cause of action for wrongful death.36 

¶59 As the Prosser & Keeton treatise explains, the commonlaw rule had perverse "intolerable" consequences: "The result 

was that it was cheaper for the defendant to kill the plaintiff 

than to injure him, and that the most grievous of all injuries 

left the bereaved family of the victim, who frequently were 

destitute, without a remedy."37 

 

36 See Rudiger v. Chicago, St. Paul, Minneapolis & Omaha Ry. 

Co., 94 Wis. 191, 68 N.W. 661 (1896): 

It was the obvious purpose of this statute to reverse 

this rule of law, and to provide that the right of 

action should survive, as in case of damages to 

property, and, of course, be liable to be prosecuted 

by or against an executor. . . . The statute under 

consideration was enacted to supply the manifest 

defect in the law as it thus existed, and to provide a 

remedy against the wrongdoer, if death ensued in 

consequence of his negligent or wrongful act (internal 

quotation marks omitted).

According to Blackstone, when a husband or father was 

injured or killed, the wife or child could not recover. 3 

William Blackstone, Commentaries *142-43. As the seminal 

English case Baker v. Bolton, Eng. Rep. (1808) 1 Camp. 493; 10 

R.R. 734, noted, "in a civil court the death of a human being 

could not be complained of as an injury . . . ."

The common-law rule barring claims for wrongful death was 

criticized by the second Justice Harlan in Moragne v. States 

Marine Lines, Inc., 398 U.S. 375 (1970). The Moragne Court 

observed that the common-law rule against wrongful death claims 

was criticized as "barbarous" and set forth no "persuasive, 

independent justification" for distinguishing between two claims 

claiming a breach of the same primary duty to the injured party 

simply because the injured party happened to die in one instance 

and not the other. Moragne, 398 U.S. at 381-82.

37 Prosser & Keeton on Torts § 127, at 945 (5th ed. 1984).
No. 2012AP2402 

28

¶60 In 1846, Parliament passed Lord Campbell's Act, which 

sidestepped the common law and created a statutory right of 

action for surviving spouses, children, and parents, as well as 

other lineal descendants.38 

¶61 States too adopted laws recognizing a statutory right 

of action for wrongful death. 

¶62 In Wisconsin, the wrongful death statute enacted in 

1857 was an almost verbatim copy of the New York wrongful death 

statute,39 which itself was copied nearly word for word from Lord 

Campbell's Act.40

¶63 A New York court explained that the New York statute 

extended the principle of liability to a wrongdoer who causes 

the death of another and gave the right to damages to 

representatives of the deceased.41

¶64 Wisconsin courts have echoed these general principles 

as the driving purposes behind the wrongful death statutes. 

 

38 For a discussion of the evolution of the rules governing 

wrongful death suits in England and the United States, see Wex

S. Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043 

(1965).

39 Compare ch. 71, Laws of 1857, with N.Y. Laws of 1847, ch. 

450. See also Whiton v. Chicago & N.W. Ry. Co., 21 Wis. 305, 

308 (1867) (noting that New York and Wisconsin employ "the same 

statute").

40 See John Fabian Witt, From Loss of Services to Loss of 

Support: The Wrongful Death Statutes, the Origins of Modern Tort 

Law, and the Making of the Nineteenth-Century Family, 25 Law & 

Soc. Inquiry 717, 734 (2000).

41 Baker v. Bailey, 16 Barb. 54, 60, 1852 WL 5345 (N.Y. Gen. 

Term. 1852).
No. 2012AP2402 

29

First, "[t]he injustices and hardships resulting from the common 

law principles in wrongful death cases caused the legislature to 

create statutory remedies and liability."42

¶65 Second, "[t]he purpose of the wrongful death statute 

is to compensate for the loss of the relational interest 

existing between the beneficiaries and the deceased."43 

¶66 In 1961 the legislature explicitly protected the 

interests of minor children of the deceased "in recognition of 

the duty and responsibility of a parent to support minor 

children."44

¶67 In contrast to these purposes, the defendants' 

interpretation of the wrongful death statutes liberates the 

alleged wrongdoer from all liability for the wrongful death in 

the instant case. According to the defendants, the liability of 

the wrongdoer for the deceased's death in the present case is 

zero and no relative of the deceased, including his minor 

children, recovers any amount. If we accept the defendants' 

reasoning, the wrongdoer in the instant case gets a windfall at 

 

42 Cogger, 35 Wis. 2d at 353.

43 Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 

560-61, 514 N.W.2d 399 (1994) (internal quotation marks and 

quoted source omitted).

44 See ¶¶42-49 and accompanying notes, supra.
No. 2012AP2402 

30

the expense of the deceased's surviving dependent minor 

children.45 

¶68 The defendants' interpretation contravenes the 

legislative purposes and produces an unfair, unreasonable, or 

absurd result that the legislature could not have intended.

V

¶69 We turn to case law to assist us in interpreting the 

phrase "surviving spouse" within the context of the wrongful 

death statutes. 

¶70 In several cases, the court has employed a literal 

interpretation of the phrase "surviving spouse," holding that a 

spouse living at the time of the wrongful death is a "surviving 

spouse" under the wrongful death statutes.46 In other cases 

courts have not read the phrase literally.

47 No prior case is 

directly on point, but we can derive principles from the case 

law that inform our resolution of the instant case. 

¶71 We begin with Cogger v. Trudell, 35 Wis. 2d 350, 353, 

151 N.W.2d 146 (1967), a lead case governing to whom a recovered 

 

45 This case does not address the survival action of the 

deceased's estate. See Wis. Stat. § 895.01(1)(am)7. Survival 

actions are different from wrongful death actions. See supra

¶¶45-46. 

46 See, e.g., Hanson, 51 Wis. 2d 466; Cogger, 35 Wis. 2d at

354-55; Bowen, 340 Wis. 2d 232.

47 See, e.g., Steinbarth, 144 Wis. 2d at 165; Xiong ex rel. 

Edmondson v. Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648 

N.W.2d 900. 
No. 2012AP2402 

31

wrongful death award belongs when a living spouse may not be 

able to recover damages and children seek to recover.

¶72 In Cogger, Darla Trudell was killed in a car accident. 

She was the passenger; her husband, Joseph Trudell, was the 

driver. The two minor Trudell children sued their father, as 

well as the driver of the other car. 

¶73 The father, being one of the defendants in the 

wrongful death suit, could not bring a claim for wrongful death 

on his own behalf against himself. The children argued that 

Wis. Stat. § 895.04(2), as amended in 1962,48 gave the children 

equal status with the surviving spouse, and thus, the fact that 

the father was alive did not bar their claim. 

¶74 The Cogger court held that Wis. Stat. § 895.04(2) 

created a "series of priorities with regard to the ownership of 

a cause of action for wrongful death" and that these priorities 

were not changed by the 1962 amendment, which added the 

provision allowing a court to determine an amount to be set 

aside for the minor children from the surviving spouse's 

recovery.

49

¶75 The Cogger court rejected the children's argument that 

the 1962 amendment creating a set-aside for minor children had 

put both the surviving spouse and the surviving children in the 

first priority class.50 Rather, the court stated: "A careful 

 

48 Ch. 649, Laws of 1961 (enacted Jan. 30, 1962).

49 Cogger, 35 Wis. 2d at 354-55.

50 The Cogger court explained:
No. 2012AP2402 

32

reading of the entire section makes it clear that the trial 

court . . . must work from the amount recovered by the spouse

who is charged with the support of the minor children."

51

¶76 Looking to case law construing the pre-1962 wrongful 

death statutes, the court concluded that both before and after 

the 1962 amendment, "[t]he beneficiaries and their preferred 

status are as follows: First, the spouse; second, a child or

children; third, the parents. Thus the nonexistence of the 

preferred beneficiary or beneficiaries is essential to a right 

of action by or in behalf of other beneficiaries."

52

¶77 Even though one of the two children in Cogger was not 

the child of the surviving spouse, the Cogger court assumed that 

the surviving spouse had an obligation to support both children

and interpreted the statute as specifically addressing minor 

children supported by the surviving spouse.

53 

 

The general plan of the statute was not changed. It 

was only amended to allow the courts to deal with the 

proceeds which would otherwise go to the surviving 

spouse in such a way as to protect the dependent 

children.

We believe that if the legislature had intended to 

create a cause of action in the surviving children in 

situations where previously none had existed, it would 

have done so in a more direct and clear manner. 

Cogger, 35 Wis. 2d at 356-57.

51 Id. at 358

52 Id. at 355 (quoting Cincoski, 4 Wis. 2d at 425).

53 Id. at 357.
No. 2012AP2402 

33

¶78 Cogger has been invoked in several cases to bar a 

minor child's recovery when the surviving spouse who had the 

obligation to support the children was allegedly responsible in 

some way for the wrongful death. Perhaps the result of these 

cases may be explained by the fact that holding for the children 

who were supported by the surviving spouse could indirectly 

inure to the benefit of the surviving spouse who caused the 

death.

¶79 In Hanson v. Valdivia, 51 Wis. 2d 466, 187 N.W.2d 151 

(1971), the minor children of the surviving spouse and the 

deceased were barred from bringing suit for the deceased 

parent's wrongful death when the surviving parent allegedly 

caused the wrongful death.

¶80 The Hanson court relied on Cogger, stating that 

"surviving children do not have a cause of action for the 

wrongful death of one of their parents when the [deceased] is 

survived by his or her spouse, and the fact that the surviving 

spouse was responsible for the death does not create a new cause 

of action in the children." Hanson, 51 Wis. 2d at 475.

¶81 A second case, Bowen v. American Family Insurance Co., 

2012 WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887, held that even 

when the surviving spouse expressly waives the wrongful death 

claim, the Cogger rule still applies and the child has no 

recovery. 

¶82 In Bowen, the deceased died while a passenger in a car 

driven by her spouse when the car collided with another car. An 

adult child of the deceased and the spouse argued that even if 
No. 2012AP2402 

34

the Cogger rule applied, the court should look to the spouse's 

express disclaimer of his wrongful death claim to pass the claim 

on to the adult child.

¶83 The court of appeals declared that the living spouse 

was a "surviving spouse," even though the spouse did not wish to 

pursue a claim and did not want to be a "surviving spouse."54

¶84 The Cogger decision and its progeny are informative,

but Cogger is not dispositive in the present case. The Cogger

court did not consider the fact situation presented in the 

instant case, in which the deceased's spouse is not negligent in 

causing the death, has no obligation to support the deceased's 

minor children, and (according to the circuit court) cannot 

recover damages for wrongful death under any circumstances.

55

¶85 A third case that adheres to Cogger and informs our 

decision in the present case is Xiong ex rel. Edmondson v. 

Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900. 

¶86 Mai Xiong died as a passenger in a car driven by Nhia 

Xiong. Mai Xiong and Nhia Xiong were the parents of minor and 

adult children. The Xiong children brought a wrongful death 

action against their father, Nhia Xiong. The circuit court 

dismissed the children's action because Nhia Xiong was 

responsible for Mai Xiong's death and, pursuant to Cogger, could 

not recover in a wrongful death claim. The Xiong children 

 

54 Bowen, 340 Wis. 2d 232, ¶¶13-14.

55 In Cogger, the living spouse apparently may have pursued 

his own independent claim against the other driver. Cogger, 35

Wis. 2d at 358.
No. 2012AP2402 

35

argued that the parents were not married, and thus, that their 

father was not a "surviving spouse."

¶87 On appeal, the court of appeals observed that there 

was no evidence of any official marriage of the parents, in 

Laos, Thailand, or Wisconsin.56 Nonetheless, the court valued 

the unique facts over the literal interpretation of "surviving 

spouse" and determined that the word "spouse" in the wrongful 

death statute could include a "putative spouse." The court of 

appeals assessed the unique facts surrounding the relationship 

between the parents and used its "equity powers" to recognize 

the relationship as sufficient to establish Nhia Xiong as the 

"surviving spouse" for the purposes of the wrongful death 

statute.57 

¶88 The court of appeals in the Xiong case then applied 

Cogger and concluded that a surviving spouse existed and the 

children could not recover.

58

¶89 Cogger and its progeny at first blush seem to preclude 

the children's recovery in the instant case. 

¶90 On closer examination, however, Cogger and its progeny 

are, as we explained previously, factually distinguishable from 

the present case. They therefore are not dispositive. Linda 

Force did not contribute in any manner to the injury and death 

 

56 Xiong, 255 Wis. 2d 693, ¶¶14-16. The father did not 

submit any evidence contradicting the children's assertion that 

the marriage was not valid or recognized at law. Id., ¶18.

57 Xiong, 255 Wis. 2d 693, ¶¶20-21.

58 Id., ¶25.
No. 2012AP2402 

36

of the deceased. Rather, the circuit court concluded that she 

cannot recover because of her estrangement from the deceased.

Because Linda Force has no support obligations to the deceased's 

minor children, she will not benefit if the children recover 

damages for wrongful death.

¶91 Furthermore, Xiong buttresses the minor children's 

position in the instant case. Xiong teaches that courts 

interpret Wis. Stat. § 895.04(2) in line with the unique fact 

situation and the purposes of the wrongful death statutes, 

rather than in line with formal compliance with laws governing 

the formation of a marriage. 

¶92 In Xiong, the parties treated each other as husband 

and wife, and the court concluded that they should be treated as 

married under the wrongful death statutes even though no proof 

of a formal marriage at law existed. 

¶93 In the instant case, the parties were estranged for 

over a decade. Adhering to the teaching of Xiong and examining 

the unique relationship of the parties in the present case 

dictate that the long-time estranged relationship not be treated 

as a marriage and that Linda Force not be considered a 

"surviving spouse" under Wis. Stat. § 895.04(2).

¶94 Additional support for the children's position comes 

from Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 

(1988). 

¶95 Steinbarth, like Xiong, relied on the unique facts

rather than the formality of the legal relationship. Steinbarth

teaches that under unusual circumstances in which the purposes 
No. 2012AP2402 

37

of the statutes would not be met, the phrase "surviving spouse"

excludes a living spouse and the children may recover damages 

under the wrongful death statutes.

¶96 In Steinbarth, the husband allegedly intentionally 

shot and killed his wife. The deceased wife's adult children 

(the husband's stepchildren) sued the husband for wrongful 

death. Using a literal interpretation of the statute rendering 

the husband a "surviving spouse," the circuit court and court of 

appeals concluded that the adult children's wrongful death claim 

was barred under Wis. Stat. § 895.04(2) (1985-86).59 The supreme 

court reversed. 

¶97 The Steinbarth court was persuaded that statutes 

prohibiting an intentional killer from benefiting from the crime 

aided in interpreting the phrase "surviving spouse" in the 

wrongful death statute.60 The Steinbarth court held "that a 

spouse who 'feloniously and intentionally' kills his or her 

spouse is not a surviving spouse for purposes of [the wrongful 

death statutes], and is treated as having predeceased the 

decedent so that the cause of action may accrue to the next 

designated beneficiary."61

 

59 Steinbarth, 144 Wis. 2d at 165. The statute in 

Steinbarth is substantially identical to the present statute in 

the relevant provisions.

60 Id. at 166-167 (e.g., life insurance, beneficiary under 

contract, joint tenancy).

61 Id. at 167-68 (emphasis added).
No. 2012AP2402 

38

¶98 The Steinbarth court noted that the unique facts of 

the case dictated the outcome. The court reasoned that an 

alternative holding would create an "anomalous result" that 

"[t]he legislature could not have intended."62

¶99 The Steinbarth court distinguished Cogger. Cogger

involved a surviving spouse who negligently caused the wrongful 

death; no basis existed in Cogger for stopping a surviving 

spouse who unintentionally but negligently caused the spouse's 

death from seeking wrongful death benefits for the loss of the 

spouse from a more negligent wrongdoer.63

¶100 On the other hand, in Steinbarth, the "surviving 

spouse," a felonious and intentional killer, could not "under

any conceivable circumstance seek recovery under the wrongful 

death statute for the loss of the decedent."

64 Unlike Cogger and 

its progeny, the surviving spouse in Steinbarth had no claim 

against a third-party wrongdoer or any ability to recover for 

wrongful death of the deceased.

¶101 The instant case does not align precisely with Cogger,

Hanson, Bowen, Xiong, or Steinbarth. Nevertheless, these cases 

support the conclusion that under the unique facts of the 

instant case, the claim of the minor children should prevail. 

¶102 The case law demonstrates that the meaning of the 

phrase "surviving spouse" has been elucidated by scrutinizing 

 

62 Id. at 167.

63 Id. at 168.

64 Id. at 169.
No. 2012AP2402 

39

unique fact situations to define "surviving spouse" in accord 

with the legislative purposes of the wrongful death statutes, 

rather than considering only the literal meaning of the phrase 

"surviving spouse." Linda Force, like the spouse in Steinbarth, 

is barred from recovering for wrongful death under any 

circumstances, according to the circuit court. To hold against 

the children here would allow a wrongdoer to escape liability 

and deprive relatives of recovery for their loss, simply because 

of an unusual fact scenario. 

¶103 Courts in other jurisdictions that have wrongful death 

laws similar to Wisconsin's placing children in a secondary 

beneficiary class,65 when confronted with unique facts, have held 

that the secondary beneficiaries have a claim even when the 

primary beneficiary may exist. Courts have allowed ameliorating 

common-law principles to apply to fill in a legislature's 

unintended gaps in a wrongful death statute. 

¶104 The case Evans v. Atlantic Cement Co., 272 So. 2d 538, 

541 (Fla. Ct. App. 1973), is a typical example of a court 

looking to the unique factual circumstances to fulfill the 

underlying purpose of the wrongful death statute. In Evans, the 

court held that a woman who lived with the deceased for nineand-a-half years and had children with him, and for whom the 

decedent provided support, could maintain an action for wrongful 

 

65 See Stuart M. Speiser & James E. Rooks, Jr., Recovery for 

Wrongful Death § 3:3 & n.2 (4th ed. 2005) (noting that in some 

jurisdictions children are among the primary beneficiary class, 

while in others, listed in the footnote, children are designated 

secondary beneficiaries behind the surviving spouse).
No. 2012AP2402 

40

death although she was not literally a "surviving spouse" of the 

deceased. The deceased was survived by a surviving spouse and 

another child from a different marriage who, under Florida law, 

could maintain a wrongful death action. 

¶105 The court reasoned that it had to construe the statute 

in the context of the unique facts of the case in order to avoid 

a result contrary to the purposes of the wrongful death statute: 

[T]he preference given by statute to a spouse over a 

child presupposes the existence of a family, including 

a parent-child relationship, in the survivors. When 

the statutes are examined entire, the conclusion 

cannot be reasonably reached that these class 

priorities were intended by the legislature to be 

applied where the fundamental family relationships 

have been legally destroyed. . . . It is unreasonable 

to conclude the legislature intended that dependent 

children or other family members be left without 

support or remedy, in favor of strangers to them.

. . . .

[W]e believe the literal wording of the statute [is] 

applicable where fundamental family relationships 

still obtain. However, where . . . the family 

relationships have ruptured or divided . . . it is 

proper to allow the additional classes to intervene.66 

¶106 Other state courts have permitted secondary 

beneficiaries to recover damages when the deceased's spouse is 

still alive. They have done so on a variety of grounds. 

¶107 For example, in Foster v. Jeffers, 813 S.W.2d 449 

(Tenn. App. 1991), the Tennessee court of appeals held that when 

a spouse still living after the death of the deceased 

 

66 Evans v. Atlantic Cement Co., 272 So. 2d 538, 541 (Fla. 

Ct. App. 1973). 
No. 2012AP2402 

41

affirmatively waives his or her claim, the secondary 

beneficiaries (in that case, the deceased's nephews) can collect 

the proceeds from the wrongful death action.67 The Foster court 

reasoned that a secondary beneficiary, who would otherwise be 

barred from a claim by the existence of a surviving spouse, must 

be able to pursue a claim "to keep alive the decedent's cause of 

action" and to achieve the statutory purpose of ending the 

regime in which "it was more economical to kill someone than to 

merely inflict a nonfatal injury."

68 Although Wisconsin courts 

have explicitly rejected this waiver approach to the wrongful 

death statute,69 Foster is instructive, standing for the 

proposition that sister states with hierarchical beneficiary 

structures permit secondary beneficiaries to collect even when 

primary beneficiaries are still alive, in order to fulfill the 

purposes of the statute in unusual or unique fact situations.

¶108 Georgia courts have similarly held that in some 

circumstances, secondary beneficiaries can recover damages when 

the deceased's spouse is still alive. In Brown v. Liberty Oil & 

Refining Corp., 403 S.E.2d 806 (Ga. 1991), the Georgia Supreme 

Court held that although the deceased's spouse was still alive 

and prior interpretations of the statute had barred children's 

 

67 Foster v. Jeffers, 813 S.W.2d 449 (Tenn. App. 1991); but 

see Bowen, 340 Wis. 2d 232, ¶¶13-15 (rejecting this waiver rule 

in Wisconsin).

68 Foster, 813 S.W.2d at 452.

69 Bowen, 340 Wis. 2d 232, ¶¶13-15 (rejecting this waiver 

rule in Wisconsin).
No. 2012AP2402 

42

wrongful death claims when there was a surviving spouse,70 in the 

unique fact scenario of the case in which the surviving spouse 

abandoned the children and could not be located, "the factual 

circumstances of this case demand the exercise of [equity] 

powers to preserve the rights of the minor children."71 The 

Georgia courts have subsequently applied this holding to other 

unusual fact scenarios to hold that secondary beneficiary 

children can recover damages for wrongful death even when the 

deceased's spouse is still alive.72

¶109 Although these cases are not dispositive of the 

instant case and do not present a unified theory, they are 

informative in teaching that state courts have recognized that 

secondary wrongful death beneficiaries can bring claims in 

unique fact scenarios in which barring such claims would 

undermine or contradict the wrongful death statutes' purposes of 

punishing wrongdoers and compensating the deceased's relatives.

¶110 In sum, Wisconsin case law and case law from other 

jurisdictions supports the children's claim in the present case. 

VI

¶111 Finally, we examine the statutory history. We have 

explored statutory history previously in our discussion of the 

text, the legislative purposes, and the case law. The statutory 

 

70 See Mack v. Moore, 345 S.E.2d 338 (Ga. 1986).

71 Brown v. Liberty Oil & Ref. Corp., 403 S.E.2d 806, 808

(Ga. 1991).

72 Emory Univ. v. Dorsey, 429 S.E.2d 307 (Ga. App. 1993).
No. 2012AP2402 

43

history shows that the legislature has repeatedly amended the 

classes of potential beneficiaries. It appears from the 

statutory history that when a court excluded a class from being 

a beneficiary, often the legislature would amend the wrongful 

death statute to include the class.73 

¶112 For our purposes, amendments in 1961 and 1962 are key 

in the statutory history, because they directly addressed the 

right of minor children to recover for wrongful death.

¶113 Before 1961, the statute made the spouse the primary 

beneficiary and the children secondary beneficiaries as lineal 

heirs of the deceased:

The amount recovered shall belong and be paid to the 

spouse of the deceased; if no spouse survives, to the 

deceased's lineal heirs as determined by section 

237.01; if no lineal heirs survive, to the deceased's 

brothers and sisters. If any such relative dies 

before judgment in the action, the relative next in 

order shall be entitled to recover for the wrongful 

death. A surviving nonresident alien wife and minor 

children shall be entitled to the benefits of this 

section.

Wis. Stat. § 331.04(2) (1959-60).

¶114 The 1961 amendment switched the order of the 

beneficiaries, placing the children as primary beneficiaries and 

the surviving spouse as a secondary beneficiary. If there were 

 

73 See, e.g., chs. 164, 581, Laws of 1907 (permitting 

recovery for brothers and sisters, superseding Brown, 102 Wis. 

137); ch. 226, Laws of 1911 (permitting nonresident aliens to 

recover, superseding McMillan, 115 Wis. 332); § 1, ch. 263, Laws 

of 1931 (allowing beneficiaries in the hierarchy to recover if a 

higher beneficiary died, superseding Woodward, 23 Wis. 400).
No. 2012AP2402 

44

no minor children, the surviving spouse recovered. The 

legislature amended the statute in 1961 to read as follows:

If the deceased leaves surviving a spouse, and minor 

children with whose support he was legally charged, 

said minor children shall be entitled to an amount as 

fixed by the circuit court . . . ; said benefits to be 

used for the support of such child or children during 

their minority, and after the youngest child reaches 

21 years of age, the balance, if any, shall be divided 

equally among said children surviving. The remainder 

of the amount recovered or the amount recovered if 

there are no such surviving minor children shall 

belong and be paid to the spouse of the 

deceased . . . .

Ch. 285, Laws of 1961 (enacted July 27, 1961).

¶115 The bill drafting file does not reveal the backstory 

of this amendment, but the language makes clear that the 

legislature intended to favor minor children whom the deceased 

was legally charged to support over a surviving spouse. 

¶116 A 1962 amendment reveals the legislature's second 

thoughts about the newly adopted 1961 hierarchy. The bill 

drafting file of the 1962 amendment also does not reveal the 

backstory of this amendment.

¶117 The 1962 amendment, adopted about six months after the 

1961 amendment, returned the surviving spouse to primary 

beneficiary status but protected the minor children by creating 

a set-aside from the surviving spouse's recovery. This 

amendment supports the defendant's interpretation of the 

wrongful death statute that the children are not in the primary 

class of beneficiaries.

¶118 The 1962 amendment reads as follows:
No. 2012AP2402 

45

If the deceased leaves surviving a spouse, and minor 

children under 18 years of age with whose support he 

was legally charged, the court before whom an action 

is pending, or if no action is pending, any court of 

record, in recognition of the duty and responsibility 

of a parent to support his minor children, shall 

determine the amount, if any, to be set aside for the 

protection of such children after considering the age 

of such children, the amount involved, the capacity 

and integrity of the surviving spouse, and any other 

facts or information it may have or receive, and such 

amount may be impressed by creation of an appropriate

lien in favor of such children or otherwise protected 

as circumstances may warrant, but such amount shall 

not be in excess of 50 per cent of the net amount 

received after deduction of costs of collection. If

there are no such surviving minor children, the amount 

recovered shall belong and be paid to the spouse of 

the deceased . . . .

Ch. 649, Laws of 1961 (enacted Jan. 30, 1962). 

¶119 This 1962 amendment gave the courts discretion to 

consider how much the set-aside for the minor children would be, 

considering "the age of such children, the amount involved, the 

capacity and integrity of the surviving spouse, and any other 

facts or information [they] may have or receive." The 

legislature made clear that the statute was enacted to protect 

the spouse but also to recognize "the duty and responsibility of 

a parent to support his minor children." 

¶120 Other than the 1961 and 1962 amendments, in recent 

years the legislature has left the wrongful death statutes 

largely intact in the wake of cases depriving or granting the 

children recovery in unusual fact situations. 

¶121 Cogger established that a surviving spouse, even one 

who was a wrongdoer in causing the deceased's death, remained a 

primary beneficiary despite cutting off the claims of the minor 
No. 2012AP2402 

46

children.74 After Cogger, the legislature took no action to 

amend the statute.

¶122 Steinbarth established that a living spouse who 

intentionally kills the deceased cannot be a surviving spouse 

under the wrongful death statute, and the children can recover.75 

Again, the legislature took no action to amend the statute.

¶123 According to the defendants, their position is 

supported by the legislature's failure to revise Wis. Stat. 

§ 895.04(2) after Cogger and other cases. These cases barred 

secondary beneficiaries from recovering under certain 

circumstances.

¶124 We are not persuaded that the legislative inaction 

supports the defendants. Legislative inaction is ordinarily 

weak evidence of legislative acquiescence in or countenance of a 

judicial or executive branch interpretation.76

¶125 Rather, the statutory history, including the 1961 and 

1962 amendments, teaches that the legislature has protected the 

interests of both the surviving spouse and the minor children 

 

74 Cogger, 35 Wis. 2d at 354-55.

75 Steinbarth, 144 Wis. 2d at 165-67.

76 See Green Bay Packaging, Inc. v. DILHR, 72 Wis. 2d 26, 

36, 240 N.W.2d 422 (1976) ("[L]egislative inaction . . . has 

been called 'a week [sic] reed upon which to lean' and a 'poor 

beacon' to follow in construing a statute" (quoted source 

omitted)); Milwaukee Journal Sentinel v. City of Milwaukee, 2012 

WI 65, ¶43 n.21, 341 Wis. 2d 607, 815 N.W.2d 367 (noting that 

"cases have expressed skepticism about the meaning of 

legislative inaction") (citing Wenke v. Gehl Co., 2004 WI 103, 

¶32, 274 Wis. 2d 220, 682 N.W.2d 405).
No. 2012AP2402 

47

and that the legislature has left interpretation of the phrase 

"surviving spouse" to the courts when unanticipated fact 

scenarios have emerged.

¶126 In the instant case, we must consider, as the 

statutory history instructs, the interests of both the surviving 

spouse and the children based on the facts at hand.

* * * *

¶127 For the reasons set forth, we interpret the phrase 

"surviving spouse" in the present case as not including Linda 

Force, the deceased's estranged spouse who, as a result of the 

circuit court's dismissal of her wrongful death claim (which was 

not appealed), is barred from recovery under Wis. Stat. 

§§ 895.03 and 895.04(2). If Linda Force is not a "surviving 

spouse" under the statute, the parties do not dispute that the 

minor children have a cognizable claim as lineal heirs. As 

lineal heirs of the deceased, the children would be first in 

line for any recovery for the wrongful death of their father. 

¶128 We conclude that the circuit court erred in granting 

the defendants summary judgment and erred in dismissing the 

minor children's causes of action against the defendants for 

wrongful death. The minor children in the present case have a 

cause of action against the defendants for wrongful death as if 

Linda Force were not alive at the death of the deceased.77

 

77 In light of our holding, we need not and do not address 

the children's equal protection constitutional claim that if 

Wis. Stat. § 895.04(2) bars their claim absent recovery by the 

surviving spouse, the statute is unconstitutional. 
No. 2012AP2402 

48

¶129 Accordingly, we reverse the judgment of the circuit 

court against the children and in favor of the defendants and 

remand the matter to the circuit court for further proceedings 

not inconsistent with this opinion.

By the Court.——The judgment and order of the circuit court 

are reversed.
No. 2012AP2402.dtp

1

¶130 DAVID T. PROSSER, J. (concurring). This is a case 

of statutory interpretation. The seminal case on statutory 

interpretation in recent years is State ex rel. Kalal v. Circuit 

Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 

N.W.2d 110.

¶131 In Kalal, the court emphasized the importance of 

statutory text when it embraced the principle that a court's 

role is to determine what a statute means rather than determine 

what the legislature intended. Id., ¶44. The court said:

It is . . . a solemn obligation of the judiciary to 

faithfully give effect to the laws enacted by the 

legislature, and to do so requires a determination of 

statutory meaning. Judicial deference to the policy 

choices enacted into law by the legislature requires 

that statutory interpretation focus primarily on the 

language of the statute. We assume that the 

legislature's intent is expressed in the statutory 

language. Extrinsic evidence of legislative intent 

may become relevant to statutory interpretation in 

some circumstances, but is not the primary focus of 

inquiry. It is the enacted law, not the unenacted 

intent, that is binding on the public. Therefore, the 

purpose of statutory interpretation is to determine 

what the statute means so that it may be given its 

full, proper, and intended effect.

Id.

¶132 The court explained that statutory interpretation 

begins with the language of the statute. Id., ¶45. "Statutory 

language is given its common, ordinary, and accepted meaning, 

except that technical or specially-defined words or phrases are 

given their technical or special definitional meaning." Id.

(citations omitted). Then the court added:

Context is important to meaning. So, too, is the 

structure of the statute in which the operative 

language appears. Therefore, statutory language is 
No. 2012AP2402.dtp

2

interpreted in the context in which it is used; not in 

isolation but as part of a whole; in relation to the 

language of surrounding or closely-related statutes; 

and reasonably, to avoid absurd or unreasonable 

results. 

Id., ¶46 (emphasis added) (citations omitted).

¶133 In my view, this case requires the court to confront 

head-on statutory language that, if applied literally, would 

produce an absurd or unreasonable result. 

¶134 Historically, courts have tried to avoid absurd or 

unreasonable results. The year before Kalal, this court said in 

State v. Hamilton, 2003 WI 50, ¶38, 261 Wis. 2d 458, 661 

N.W.2d 832: "The court should not search for ambiguity. It 

should enforce a clear statute." However, "One of the few 

exceptions to this sound principle is that the court will seek 

to avoid a truly absurd or unreasonable result." Id., ¶39 

(citing State v. Burkman, 96 Wis. 2d 630, 642, 292 N.W.2d 641 

(1980); State v. Mendoza, 96 Wis. 2d 106, 115, 291 N.W.2d 478 

(1980); Kayden Indus., Inc. v. Murphy, 34 Wis. 2d 718, 732, 150 

N.W.2d 447 (1967)).

¶135 There are innumerable cases in which Wisconsin courts 

have repeated or actually invoked this exception.

¶136 In Worachek v. Stephenson Town School District, 270 

Wis. 116, 124, 70 N.W.2d 657 (1955), the court stated: "This 

court has repeatedly held that a statute should not be construed 

so as to work an absurd result even when the language seems 

clear and unambiguous." Id. (citing Connell v. Luck, 264 Wis. 

282, 58 N.W.2d 633 (1953); Laridaen v. Ry. Express Agency, Inc., 
No. 2012AP2402.dtp

3

259 Wis. 178, 47 N.W.2d 727 (1951); Pfingsten v. Pfingsten, 164 

Wis. 308, 159 N.W. 921 (1916)).

¶137 In Isaksen v. Chesapeake Instrument Corp., 19 

Wis. 2d 282, 289-90, 120 N.W.2d 151 (1963), the court stated: 

We are unable to conceive of any reason of policy 

which might lead the legislature to deny to 

shareholders so situated the remedy it had provided 

for others, and Chesapeake has not suggested any.

. . . .

"It is always presumed, in regard to a statute, that 

no absurd or unreasonable result was intended by the 

legislature. Hence if, viewing a statute from the 

standpoint of the literal sense of its language, it is 

unreasonable or absurd, an obscurity of meaning 

exists, calling for judicial construction."

Id. (some citations omitted) (quoting Rice v. Ashland Cnty., 108 

Wis. 189, 192, 84 N.W. 189 (1900)).

¶138 In Kayden Industries, Inc. v. Murphy, 34 Wis. 2d 718, 

732, 150 N.W.2d 447 (1967), the court stated:

Where there is no ambiguity in the literal terms of 

the provision under consideration there is no room for 

judicial construction. . . . The only general 

exception to the above rule[] . . . is that the court 

may construe a provision whose meaning is clear if a 

literal application of the provision would lead to an 

absurd or unreasonable result.

Id. (citations omitted).

¶139 In Alberte v. Anew Health Care Services, Inc., 2000 WI 

7, ¶10, 232 Wis. 2d 587, 605 N.W.2d 515, the court stated:

While it is true that statutory interpretation 

begins with the language of the statute, it is also 

well established that courts must not look at a 

single, isolated sentence or portion of a sentence, 

but at the role of the relevant language in the entire 

statute. Moreover, courts have "'some "scope for 

adopting a restricted rather than a literal or usual 
No. 2012AP2402.dtp

4

meaning of its words where acceptance of that 

meaning . . . would thwart the obvious purpose of the 

statute."'" When a literal interpretation produces 

absurd or unreasonable results, or results that are 

clearly at odds with the legislature's intent, "[o]ur 

task is to give some alternative meaning" to the 

words.

Id. (brackets in original) (citations omitted).

¶140 In Teschendorf v. State Farm Insurance Companies, 2006 

WI 89, ¶15, 293 Wis. 2d 123, 717 N.W.2d 258, the court stated: 

[I]f the meaning of the statute appears to be plain 

but that meaning produces absurd results, we may also 

consult legislative history. The purpose in this 

situation is to verify that the legislature did not 

intend these unreasonable or unthinkable results. 

Because our purpose in these situations is grounded in 

open disbelief of what a statute appears to require, 

we are bound to limit our off-statute investigations 

to obvious aberrations.

Id. (internal citations and explanatory parentheticals omitted). 

The court went on, "The reason to doubt a literal meaning of 

[the statute] is that it clashes with related statutes." Id., 

¶24.

¶141 In Gasper v. Parbs, 2001 WI App 259, ¶8, 249 

Wis. 2d 106, 637 N.W.2d 399, the court of appeals stated:

[T]he plain language of a statute should not be 

construed in a manner that leads to absurd or 

unreasonable results. State v. Yellow Freight Sys., 

Inc., 101 Wis. 2d 142, 153, 303 N.W.2d 834 (1981). We 

presume that "the legislature intends for a statute to 

be interpreted in a manner that advances the purposes 

of the statute." Verdoljak v. Mosinee Paper Corp.,

200 Wis. 2d 624, 635, 547 N.W.2d 602 (1996).

Id.

¶142 These principles were undoubtedly applied in 

Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 (1988), 

where the court said: "A court will not ordinarily engage in 
No. 2012AP2402.dtp

5

statutory interpretation unless a statute is ambiguous. A 

statute may be ambiguous and require judicial construction if 

the literal application of the language would lead to an absurd 

result." Id. at 165 (citing DeMars v. LaPour, 123 Wis. 2d 366, 

370, 366 N.W.2d 891 (1985)). Steinbarth, of course, interpreted 

the same statute now before the court.

¶143 Courts try to avoid absurd results, but courts are not 

eager to disregard the seemingly clear language of a statute. 

This reluctance is salutary because it reflects the deference 

and respect of the judiciary for the policy choices of other 

branches of government.

¶144 For judges, there is plenty of solid ground between 

judicial activism and judicial paralysis. Our precedent 

provides guidance on when judges should act and when they should 

not.

¶145 Absurd results are much more than undesirable results. 

Absurd results are aberrations that clash with the manifest 

purpose of a statute or related statutes (evidenced by statutory 

language) and cannot be explained as a rational exception to the 

statutory scheme. Absurd results are usually unexpected. They 

are different from harsh consequences because they are seldom 

the fault of an adversely affected party. Instead, they almost 

always result from circumstances beyond the party's control. 

Absurd results produce hardship or unfairness that is quickly 

recognized and cannot be ignored.
No. 2012AP2402.dtp

6

¶146 This case satisfies these standards, as is documented 

in the majority opinion. We ought to act but also implore the 

legislature to rewrite the statute.

¶147 For the foregoing reasons, I respectfully concur.
No. 2012AP2402.pdr

1

¶148 PATIENCE DRAKE ROGGENSACK, J. (dissenting). While 

the majority opinion reaches an appealing result as it permits 

the minor children of Billy Joe Force to maintain a claim for 

his wrongful death, I cannot join the opinion. In my view, the 

majority opinion's conclusion that the statutory term "surviving 

spouse" does not mean a spouse who has survived the death of her 

husband because she was estranged from her husband at his death 

is not based on statutory construction and will create 

considerable mischief in the future. Accordingly, I would 

affirm the circuit court, and I respectfully dissent. 

I. BACKGROUND

¶149 The underlying facts are not disputed or complicated. 

On December 12, 2008, Billy Joe Force died as a result of a 

motor vehicle accident. At the time of his death, Billy was 

married to Linda Force. However, Billy and Linda had been 

separated since 1996, and Billy had not provided any support to 

Linda since 1997. 

¶150 Billy and Linda had no children of their marriage. 

However, at his death, Billy had three minor children, born of 

two women, neither of whom he had married. It is these three 

children who seek to maintain this wrongful death action against 

Jeffrey Brown, the driver of the other vehicle in the accident; 

his insurer, American Family Mutual Insurance Company; and 
No. 2012AP2402.pdr

2

Regent Insurance Company, the insurer of Billy's employer, for 

whom Billy was driving at the time of the accident.1

¶151 The circuit court granted summary judgment of 

dismissal, concluding that: (1) Linda survived Billy; (2) the 

children had no independent cause of action under Wis. Stat. 

§ 895.04(2); (3) Linda had no compensable damages; and (4) 

because Linda could not recover, no offset was available for the 

children. The court of appeals certified the issue of whether 

children have an independent claim for relief under § 895.04 

when there is a surviving spouse, who has been estranged from 

the decedent for more than ten years and could not recover, 

thereby precluding any set aside for the children.2 We accepted 

certification. 

II. DISCUSSION

A. Standard of Review

¶152 We are asked to construe the term "surviving spouse" 

in Wis. Stat. § 895.04(2). Statutory interpretation presents a 

question of law for our independent review; however, we benefit 

from the circuit court's discussion. Spiegelberg v. State, 2006 

WI 75, ¶8, 291 Wis. 2d 601, 717 N.W.2d 641. When we construe a 

statute, we also consider our past interpretations of that 

 

1 Because Billy was driving for his employer at the time of 

the accident, the employer could bring a third party liability 

action to recover money the employer may have paid on Billy's 

behalf. See Wis. Stat. § 102.29; Adams v. Northland Equipment 

Co., 2014 WI 79, ¶4, __ Wis. 2d __, __ N.W.2d __. Section 

102.29 claims are mentioned in Wis. Stat. § 895.04(2).

2 Force v. Am. Family Mut. Ins. Co., No. 2012AP2402, 

unpublished slip op. (Wis. Ct. App. July 3, 2013). 
No. 2012AP2402.pdr

3

statute. Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶49, 327 

Wis. 2d 572, 786 N.W.2d 177. 

B. Wisconsin Stat. § 895.04(2)

¶153 We are not writing on a clean slate as we interpret 

Wis. Stat. § 895.04(2) in the case now before us. As the court 

of appeals correctly pointed out, our interpretation of Cogger 

v. Trudell, 35 Wis. 2d 350, 151 N.W.2d 146 (1967), precludes 

recovery for children when there is a surviving spouse who 

cannot recover. Courts have followed Cogger with only one 

exception since 1967, Steinbarth v. Johannes, 144 Wis. 2d 159, 

423 N.W.2d 540 (1988). 

¶154 In Steinbarth, the husband feloniously and 

intentionally killed his wife, whose death was the basis for the 

children's wrongful death claim. During our consideration of 

the children's claim, we reviewed Wis. Stat. § 852.01(2m) (1985-

86), which precluded one who feloniously and intentionally 

killed a decedent from recovering as an heir of the decedent. 

Id. at 166. We noted that § 852.01(2m) (1985-86) treated the 

killer as having predeceased the decedent.3 Id. We reasoned 

that the husband in Steinbarth should be treated consistent with 

 

3 Wisconsin Stat. § 852.01(2m) (1985-86) provided: 

Requirement that heir not have intentionally 

killed the deceased. (a) If any person who would 

otherwise be an heir under sub. (1) has feloniously 

and intentionally killed the decedent, the net estate 

not disposed of by will passes as if the killer had 

predeceased the decedent. 
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the statutory directive of § 852.01(2m) (1985-86).4 In order to 

do so, we concluded that a husband who feloniously and 

intentionally killed his wife will be treated for purposes of a 

wrongful death claim as though he had predeceased his wife. 

Accordingly, there would be no surviving spouse under Wis. Stat. 

§ 895.04 and the children could maintain an action for wrongful 

death. Id. at 167.

¶155 In Steinbarth, we distinguished Cogger by noting that 

the spouse's death in Cogger was based on negligence and in 

Steinbarth, it was based on intent to kill. We also noted a 

specific legislative directive about the status of one who kills 

his spouse for purposes of claims made relative to the death of 

the spouse. Neither distinction is present here. Linda had 

nothing to do with Billy's death, and there is no statutory 

directive, other than the wrongful death statute, Wis. Stat. 

§ 895.04, that applies here. 

¶156 If I were writing for the majority, I would affirm the 

circuit court and fully describe how unfair the current statute 

is to children who have suffered significant damages due to the 

wrongful death of a parent, but who have no claim when the 

surviving spouse has no recovery. By the 1961 amendments to 

Wis. Stat. § 895.04(2), the legislature made an attempt to 

independently protect children who suffered a loss because of 

 

4 Wisconsin Stat. § 852.01(2m) was revised subsequent to 

Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 (1988), 

and Wis. Stat. § 854.14 further addresses homicide and rights of 

inheritance. The revisions are not relevant to our decision in 

Steinbarth or to my dissent.
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the wrongful death of a parent, but more is needed today to 

finish what the legislature then began. 

¶157 Instead of acknowledging that a claim for wrongful 

death is purely statutory and that at common law no such claim 

existed, Bowen v. American Family Insurance Co., 2012 WI App 29, 

¶10, 340 Wis. 2d 232, 811 N.W.2d 887, the majority opinion 

pretends that it is construing Wis. Stat. § 895.04(2) and 

creates a new claim.

5 It interprets the statutory phrase, 

"surviving spouse," as not including Linda, Billy's spouse who 

survived him. The majority justifies the result it reaches by 

relating that Linda and Billy have been estranged for ten years 

and that Linda could not prove wrongful death damages on her own 

behalf.6 

¶158 While the majority opinion's result is appealing, I 

cannot join the majority opinion's interpretation of the Wis. 

Stat. § 895.04(2) term "surviving spouse." The methods employed 

to interpret § 895.04(2) comport with none of the legal 

principles that guide statutory interpretation. See, e.g., 

State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, 

¶¶38-46, 271 Wis. 2d 633, 681 N.W.2d 110. Saying that 

§ 895.04(2) means whatever the majority wants it to mean will 

cause confusion and repetitive litigation. 

¶159 For example, is an estrangement of five years 

sufficient time to cause a spouse who survives the decedent to 

no longer be a "surviving spouse" under the majority opinion's 

 

5 Majority op., ¶¶125-26.

6 Majority op., ¶5. 
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construction of Wis. Stat. § 893.04(2)? Is two years long 

enough, if there has been absolutely no communication between 

the spouses? Furthermore, how does the majority opinion line up 

with spousal intestate succession under Wis. Stat. ch. 852, 

which says nothing about a spouse's rights being limited due to 

the husband and wife being separated? See Wis. Stat. § 852.01. 

¶160 Claims of the type now before us under Wis. Stat. 

§ 895.04(2) are commonly brought and commonly denied because of 

our decision in Cogger.

7 We would assist children who attempt to 

bring wrongful death claims in the future by pointing out the 

unfairness the current statute creates and asking the 

legislature to consider revising § 895.04(2), rather than 

creating a common law fix for the children in the present case 

and leaving all similarly situated children without a claim due 

to our interpretation of § 895.04(2) in Cogger. 

 

7 See Bowen v. Am. Family Ins. Co., 2012 WI App 29, 340 

Wis. 2d 232, 811 N.W.2d 887 (father was a defendant and could 

not recover due to his contributory negligence in the accident 

that killed his wife; therefore, children had no claim); Xiong 

v. Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900 

(father drove vehicle in which mother was passenger who died 

after an accident; children had no claim); Anderson v. 

Westchester Fire Ins. Co., No. 94-1211-FT, unpublished slip op. 

(Wis. Ct. App. Nov. 29, 1994) (concluding that because 

stepmother survived the death of child's parent, child had no 

claim under Wis. Stat. § 895.04); Maki v. Kahler, No. 83-773, 

unpublished slip op. (Wis. Ct. App. Mar. 27, 1984) (concluding 

that children had no claim based on Cogger). Cogger has been 

cited 25 times in cases noted in Westlaw's database and probably 

many times that number in circuit court decisions from which no 

appeal was taken.
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III. CONCLUSION

¶161 While the majority opinion reaches an appealing result

as it permits the minor children of Billy Joe Force to maintain 

a claim for his wrongful death, I cannot join the opinion. In 

my view, the majority opinion's conclusion that the statutory 

term "surviving spouse" does not mean a spouse who has survived 

the death of her husband because she was estranged from her 

husband at his death is not based on statutory construction and 

will create considerable mischief in the future. 

¶162 Accordingly, I would affirm the court of appeals and I 

respectfully dissent. 

¶163 I am authorized to state that Justices ANNETTE 

KINGSLAND ZIEGLER and MICHAEL GABLEMAN join this dissent.
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¶164 ANNETTE KINGSLAND ZIEGLER, J. (dissent). I join 

Justice Roggensack's dissent, but write separately to clarify 

that, had the majority been able to link the Force children's 

ability to recover with the language of the statute, and 

reconcile that text with our prior case law, see, e.g., Cogger 

v. Trudell, 35 Wis. 2d 350, 353, 151 N.W.2d 146 (1967), I would 

have joined the majority. The majority was unable, however, to 

find a satisfactory, textual way to construe Wis. Stat. 

§ 895.04(2) so to allow the Force children to recover in a 

wrongful death action. As a result, I am compelled to join 

Justice Roggensack's dissent.

¶165 Justice Prosser concludes that the application of the 

statutory language produces an "absurd" result. See Justice 

Prosser's concurrence, ¶133. An unpalatable result is not the 

same as an absurd result. We are to look to the text of the 

statute to determine whether relief is afforded to the 

litigants. "In construing or interpreting a statute the court 

is not at liberty to disregard the plain, clear words of the 

statute." State ex rel. Kalal v. Circuit Court for Dane Cnty., 

2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (citation 

omitted). It is not the role of the courts to "save" the 

legislative branch from the consequences of the laws it passes,

or to create a remedy when the plain language of the statute 

does not afford relief.

¶166 As a practical matter, the legislature cannot be 

expected to meaningfully reconsider legislation if the court 

usurps the role of the legislature in order to create a remedy 
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where none otherwise exists. The long and complex history of 

the wrongful death statute provides support for the notion that 

the legislature should consider revision to provide relief when 

it should be due. See majority op., ¶¶69-102 (discussing 

Steinbarth v. Johannes, 144 Wis. 2d 159, 423 Wis. 2d 540 (1988); 

Hanson v. Valdivia, 51 Wis. 2d 466, 187 N.W.2d 151 (1971); 

Cogger, 35 Wis. 2d 350; Bowen v. American Family Ins. Co., 2012 

WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887; Xiong v. Xiong, 2002 

WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900). The majority's 

apparent difficulty in distinguishing these cases provides an 

apt illustration of the problem. The court should not avoid the 

plain language of a statute in order to prevent unpleasant 

results. In my view, legislative action is required.

¶167 For the foregoing reasons, I dissent.
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