                                                           2015 WI 58

                  SUPREME COURT       OF   WISCONSIN
CASE NO.:            2012AP1493
COMPLETE TITLE:      Donald Christ, individually and as Special
                     Administrators
                     of the Estate of Gail P. Christ, deceased,
                     Jacqueline
                     Radosevich, individually and as Special
                     Administrator of
                     the Estate of Gary Radosevich, deceased, Mary
                     Jane
                     Beaulieu, individually and as Special
                     Administrator of the
                     Estate of William Beaulieu, deceased, Paul
                     Clark,
                     individually and as Special Administrator of the
                     Estate of
                     Sharon A. Clark, deceased, Betty Grosvold,
                     individually
                     and as Special Administrator of the Estate of
                     Victor M.
                     Grosvold, deceased, Dianne Pederson,
                     individually and as
                     Special Administrator of the Estate of Mae H.
                     Heath,
                     deceased, Carrie Duss, individually and as
                     Special
                     Administrator of the Estate of Mary Henneman,
                     deceased and
                     Arlene Christ,
                                Plaintiffs-Appellants-Cross-
                     Respondents,
                     Deborah Sherwood, individually and as Special
                     Administrator of the Estate of Gerald F. Conley,
                     deceased,
                     Randy S. Hermundson, individually, Darlene
                     Insteness,
                     individually and as Special Administrator of the
                     Estate of
                     Robert A. Insteness, deceased, Joyce Jensen,
                     individually,
                     Jean M. Leskinen, individually,, Paul T. Manny,
                     Anita
                     Manny, Douglas Winrich, individually and as
                     Special
                     Administrator of the Estate of Barbara Winrich,
                     deceased,
                     Barbara Nelson, individually and as Special
                     Administrator
                        of the Estate of Terry Nelson, deceased, Faye
                        Reiter,
                        individually, Donald Schindler, individually and
                        Jean Ruf,
                        individually and as Special Administrator of the
                        Estate of
                        Richard R. Ruf, deceased,
                                   Plaintiffs,
                             v.
                        Exxon Mobil Corporation, Sunoco, Inc., Texaco
                        Downstream
                        Properties, Inc., Four Star Oil and Gas Company,
                        BP
                        Products North America, Inc. and Ashland
                        Chemical Company
                        Division of Ashland, Inc.,
                                   Defendants-Respondents-Cross-
                        Appellants-Petitioners,
                        Shell Chemical, L.P., Cornerstone Natural Gas
                        Company and
                        Shell Oil Company,
                                   Defendants.

                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                                  (Summary Disposition – No citation)

OPINION FILED:          June 23, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 4, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Eau Claire
   JUDGE:               Lisa K. Stark

JUSTICES:
   CONCURRED:
   DISSENTED:           ROGGENSACK, C.J.,ZIEGLER, J. dissent. (Opinion
                        filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For             the         defendants-respondents-cross-appellants-
petitioners, there were briefs by Dennis M. Sullivan, Michael A.
Hughes, Larry Chilton, and Chilton Yambert Porter LLP, Madison,
and oral argument by Dennis M. Sullivan.



                                          2
     For the plaintiffs-appellants-cross-respondents, there was
a brief by Matthew A. Biegert, Michael J. Brose, and Doar, Drill
& Skow, S.C., New Richmond; Michael R. Sieben and Sieben Polk,
P.A., Hastings, MN; Richard Alexander and Alexander Law Group,
LLP, San Jose, CA; and Mandy Hawes, San Jose, CA. Oral argument
by Matthew A. Biegert.




                               3
                                                                   2015 WI 58
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.   2012AP1493
(L.C. No.   2006CV420)

STATE OF WISCONSIN                       :            IN SUPREME COURT

Donald Christ, individually and as Special
Administrator of the Estate of Gail P. Christ,
deceased, Jacqueline Radosevich, individually
and as Special Administrator of the Estate of
Gary Radosevich, deceased, Mary Jane Beaulieu,
individually and as Special Administrator of
the Estate of William Beaulieu, deceased, Paul
Clark, individually and as Special
Administrator of the Estate of Sharon A. Clark,
deceased, Betty Grosvold, individually and as
Special Administrator of the Estate of Victor
M. Grosvold, deceased, Dianne Pederson,
individually and as Special Administrator of
the Estate of Mae H. Heath, deceased, Carrie
Duss, individually and as Special Administrator
of the Estate of Mary Henneman, deceased and                    FILED
Arlene Christ,
                                                           JUN 23, 2015
          Plaintiffs-Appellants-Cross-
Respondents,                                                  Diane M. Fremgen
                                                           Clerk of Supreme Court
Deborah Sherwood, individually and as Special
Administrator of the Estate of Gerald F.
Conley, deceased, Randy S. Hermundson,
individually, Darlene Insteness, individually
and as Special Administrator of the Estate of
Robert A. Insteness, deceased, Joyce Jensen,
individually, Jean M. Leskinen, individually,
Paul T. Manny, Anita Manny, Douglas Winrich,
individually and as Special Administrator of
the Estate of Barbara Winrich, deceased,
Barbara Nelson, individually and as Special
Administrator of the Estate of Terry Nelson,
deceased, Faye Reiter, individually, Donald
Schindler, individually and Jean Ruf,
individually and as Special Administrator of
the Estate of Richard R. Ruf, deceased,

                  Plaintiffs,

        v.

Exxon Mobil Corporation, Sunoco, Inc., Texaco
Downstream Properties, Inc., Four Star Oil and
Gas Company, BP Products North America, Inc.
and Ashland Chemical Company Division of
Ashland, Inc.,

          Defendants-Respondents-Cross-
Appellants-Petitioners,

Shell Chemical, L.P., Cornerstone Natural Gas
Company and Shell Oil Company,

                  Defendants.




        REVIEW of a decision of the Court of Appeals.                  Affirmed.


        ¶1        DAVID   T.    PROSSER,   J.     This     is   a     review   of   an
unpublished opinion and order of the court of appeals,1 which
summarily reversed a grant of summary judgment in favor of Exxon
Mobil Corp. et al., by the Eau Claire County Circuit Court, Lisa
K. Stark, Judge.
        ¶2        The case involves the viability of certain wrongful
death and survival claims.                 It is part of a larger tort suit

filed        in    2006    by    former    employees     and    the    estates      and

        1
       Christ v. Exxon Mobil Corp., No. 2012AP1493, unpublished
order (Wis. Ct. App. Feb. 12, 2014).




                                            2
                                                                          No.      2012AP1493



beneficiaries             of   former    employees        at     an    Eau      Claire     tire
manufacturing         plant.       The    tort     suit    alleged      that     the     former
employees' injuries and deaths resulted from their exposure to
benzene in the workplace.                 This appeal relates to the summary
judgment entered against eight plaintiffs on grounds that their
claims were filed too late.
       ¶3      The defendants, Exxon Mobil Corp. et al.,2 contend that
the    claims        of    these   plaintiffs       were       not     filed     before     the
expiration of the three-year statute of limitations set forth in
Wis.       Stat.    § 893.54(2)        (2005-06).         They    contend       that,     under
Wisconsin law, the plaintiffs' claims could not have accrued
later than the deaths of the decedents they represent because

the discovery rule in wrongful death and survival claims does
not extend to "third parties," that is, parties other than the
decedents.          Thus, they argue, the statute of limitations began
to run more than three years before any of the plaintiffs in
this appeal filed their claims.
       ¶4      The        plaintiffs     counter    that       their     claims     did    not
accrue until they had reason to believe that the defendants were
responsible for the injuries giving rise to their claims.                                  They
assert       that     Wisconsin's        judicially        created       discovery         rule
applies to both survival claims and wrongful death claims in
such a way that the claims may accrue later than a decedent's

       2
       For the sake of simplicity, we refer to the petitioners
here, collectively, as "defendants" and the respondents here,
collectively, as "plaintiffs."   The parties have followed these
designations throughout the litigation.



                                              3
                                                                               No.         2012AP1493



death if an appropriate third party's discovery of the claim is
reasonable.        They argue that there is no law that limits this
application of the discovery rule.
       ¶5    We      agree      with     the     plaintiffs          and       hold     that      the
discovery rule permits the accrual of both survival claims and
wrongful death claims after the date of the decedent's death.
In the absence of a legislatively created rule to the contrary,
claims      accrue     when      there     is        a     "claim    capable          of    present
enforcement, a suable party against whom it may be enforced, and
a party who has a present right to enforce it."                                 Emp'rs Ins. of
Wausau v. Smith, 154 Wis. 2d 199, 231, 453 N.W.2d 856 (1990)
(quoting     Barry     v.     Minahan,         127       Wis. 570,       573,     107      N.W. 488

(1906)).          These    criteria       are       not     met     "until      the        plaintiff
discovers, or in the exercise of reasonable diligence should
have discovered, not only the fact of injury but also that the
injury      was    probably       caused        by        the   defendant's           conduct      or
product."         Borello v. U.S. Oil Co., 130 Wis. 2d 397, 411, 388
N.W.2d 140        (1986).        See     also        Carlson        v.    Pepin       Cnty.,      167
Wis. 2d 345, 352-53, 481 N.W.2d 498 (Ct. App. 1992) ("Under the
discovery rule, a cause of action accrues when the plaintiff
discovered or, in the exercise of reasonable diligence, should
have   discovered         his    injury,        its       nature,        its   cause        and   the
identity of the allegedly responsible defendant.").
       ¶6    In     the    circumstances             of    this     case,      the     applicable
statute of limitations began to run when the survival claims and
wrongful      death       claims       were     discovered,              provided       that      the


                                                4
                                                                       No.         2012AP1493



plaintiffs         are   able     to    show    that    they   exercised      reasonable
diligence in investigating and discovering their claims.
        ¶7      Given      the    procedural         posture   of    this     case,      the
plaintiffs have not yet demonstrated that their claims accrued
less        than   three     years      before      they   filed     their    complaint.
Accordingly, we affirm the court of appeals and remand to the
circuit court for a determination as to whether the plaintiffs
have        satisfied    the     statute   of       limitations     under    our    accrual
rule.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
        ¶8      The relevant facts are undisputed.                  On July 13, 2006,
multiple parties (the initial plaintiffs)3 filed suit against
multiple defendants (the initial defendants) in the Eau Claire
County Circuit Court.                  The complaint alleged that the initial
plaintiffs were employed at an Eau Claire tire manufacturing
facility operated by the Uniroyal Goodrich Tire Company, Inc.4
The     complaint        alleged        that     during    the      course     of     their
employment, the initial plaintiffs were exposed to benzene and
benzene-containing products.                The complaint further alleged that
as a result of their exposure to benzene and benzene-containing

        3
       Three of these parties are relevant to this appeal: Arlene
Christ; Donald Christ, individually and as special administrator
of the Estate of Gail Christ; and Jacqueline Radosevich,
individually and as special administrator of the Estate of Gary
Radosevich.
        4
       In the case of the Christs and Radosevich, the decedents
they represented had been the ones employed at the manufacturing
facility.



                                                5
                                                                       No.         2012AP1493



products,       the    initial    plaintiffs         were    injured      and,     in    some
cases, died.          The initial plaintiffs sought unspecified damages
on the theories of negligence, strict liability, and failure to
warn.
        ¶9     In    due   course,     the    initial       defendants       individually
answered       the    complaint    and   denied       liability     for      the    alleged
injuries.           Two of the initial defendants——Hovland's, Inc. and
Shell Canada, Ltd.——also filed cross-claims against certain co-
defendants, leading those parties to file answers to the cross-
claims as well.
        ¶10    On December 28, 2007, an amended complaint was filed.
The amended complaint added nine parties as plaintiffs5 and three
corporations as defendants.                  From 2008 through 2011, various
filings       not    pertinent    to   this       appeal    were   made      in    the   case
resulting in the dismissal of certain defendants.
        ¶11    On March 5, 2012, the remaining defendants moved for
dismissal of the complaints of eight of the plaintiffs.6                                 This
        5
       Five of the nine parties are relevant to this appeal: Mary
Jane Beaulieu, individually and as special administrator of the
Estate of William J. Beaulieu; Paul Clark, individually and as
special administrator of the Estate of Sharon Ann Clark; Betty
Grosvold, individually and as special administrator of the
Estate of Victor M. Grosvold; Dianne Pederson, individually and
as special administrator of the Estate of Mae H. Heath; and
Carrie Duss, individually and as special administrator of the
Estate of Mary Henneman.
        6
       The motion to dismiss eight of the plaintiffs concerned
the complaints related to the following seven deceased former
employees: William Beaulieu, Gail P. Christ, Sharon Ann Clark,
Victor M. Grosvold, Mae H. Heath, Mary Henneman, and Gary
Radosevich (collectively, the decedents).


                                              6
                                                                        No.      2012AP1493



motion was based in part on Wis. Stat. § 893.54 (2005-06), which
bars recovery for survival and wrongful death claims filed more
than three years after accrual.                       The defendants contended that
the eight plaintiffs' claims could have accrued no later than
the time of the decedents' deaths, and because the decedents
died        more     than      three    years    prior     to   the     filing       of   the
complaints,7 the plaintiffs' claims were time-barred.
        ¶12       On March 27, the plaintiffs filed a brief opposing
dismissal.           They argued that the discovery rule delayed accrual
of their claims until they knew or reasonably should have known
of their injuries and of the defendants' role in those injuries.
They contended that, at the very least, material issues of fact

remained as to when their claims accrued.
        ¶13       The    Eau   Claire    County       Circuit   Court   held     a    motion
hearing on April 30, 2012.8                     After both sides presented their
arguments, the court——expressing substantial difficulty with the
state       of     the   law——granted      the       motion.    The   court    relied       on
Miller       v.     Luther,     170    Wis. 2d 429,       489   N.W.2d 651     (Ct.       App.
1992), and Estate of Merrill ex rel. Mortensen v. Jerrick, 231
Wis. 2d 546, 605 N.W.2d 645 (Ct. App. 1999), to determine that


        7
       According to the defendants, William Beaulieu died in
1997, Gail Christ died in 2002, Sharon Clark died in 2001,
Victor Grosvold died in 2003, Mae Heath died in 1996, Mary
Henneman died in 1995, and Gary Radosevich died in 1999. The
plaintiffs have not disputed these dates.
        8
       The court treated the defendants' motion to dismiss as a
motion for summary judgment.



                                                 7
                                                          No.     2012AP1493



the plaintiffs' claims had accrued at death, and were therefore
barred by the statute of limitations.
      ¶14    The court of appeals summarily reversed the circuit
court's grant of summary judgment.          Christ v. Exxon Mobil Corp.,
No. 2012AP1493, unpublished order (Wis. Ct. App. Feb. 12, 2014).
The court relied on its earlier decision in Beaver v. Exxon
Mobil Corp., No. 2012AP542, unpublished slip op. (Wis. Ct. App.
May   9,    2013),   which   presented    nearly   identical    facts   with
different plaintiffs.        The court stated: "The discovery rule
provides that the statute of limitations begins to run when the
plaintiff discovers or should have discovered the injury and
that the injury may have been caused by the defendant."            Christ,
No. 2012AP1493, at 3 (citing Doe v. Archdiocese of Milwaukee,
211 Wis. 2d 312, 335, 565 N.W.2d 94 (1997)).           The court did not
make a determination as to whether the plaintiffs' claims were
in fact timely, but remanded the case to the circuit court for
further proceedings.
      ¶15    The defendants moved for reconsideration of the court
of appeals' decision, claiming that the circuit court already
had applied the discovery rule.          The court of appeals denied the
motion.     The defendants then petitioned this court for review,
which we granted on October 6, 2014.
                         II. STANDARD OF REVIEW
      ¶16    We are asked to review the circuit court's grant of
summary judgment.      "We review a decision on a motion for summary
judgment independently, employing the same methodology as the
circuit court."      Estate of Genrich v. OHIC Ins. Co., 2009 WI 67,
                                     8
                                                                  No.        2012AP1493



¶10, 318 Wis. 2d 553, 769 N.W.2d 481.                 Making that determination
in this case requires us to decide the correct legal standard
for accrual for courts to apply to survival and wrongful death
claims.      This involves questions of law and the interpretation
of statutes, both of which this court reviews de novo.                       State v.
Williams, 2014 WI 64, ¶16, 355 Wis. 2d 581, 852 N.W.2d 467; GMAC
Mortg. Corp. v. Gisvold, 215 Wis. 2d 459, 470, 572 N.W.2d 466
(1998).
      ¶17     We   are   also   asked   to     review    the   court    of    appeals'
summary disposition of this case.               The court of appeals has the
power to summarily reverse a circuit court's decision.                             Wis.
Stat. § (Rule) 809.21.9            The defendants contend, however, that

the   summary       disposition      of       their     appeal   violated         their
constitutional rights.           Whether a party's constitutional right
was violated is a question of constitutional fact.                      This court's
review of questions of constitutional fact follows a two-step
process.      State v. Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228,
647 N.W.2d 142 (citing State v. Henderson, 2001 WI 97, ¶16, 245
Wis. 2d 345, 629 N.W.2d 613).             First, we accept findings of fact
unless      they   are   clearly    erroneous.           Id.     Then,       we   apply
constitutional principles to those facts de novo.                  Id.
                                 III. DISCUSSION
                   A. Wrongful Death and Survival Claims



      9
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.



                                          9
                                                                            No.     2012AP1493



        ¶18     We begin with a brief history of the types of claims
at issue in this case.10                    At common law, tort claims died if
either       the    victim       or   the   tortfeasor     died    before         the   victim
recovered damages.               W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 125A, at 940 (5th ed., lawyer's ed. 1984).
In addition, family members of deceased victims had no cause of
action        for    the    loss      of    financial    support       or     companionship
incurred as a result of the death of their relatives.                                      Id.
However, these early common law rules have since been altered.
        ¶19     Damages for injuries sustained by a tort victim prior
to his death now survive in what is known as a survival action.
In Wisconsin, statutory survival actions date back to at least

1839.        See § 44, Statutes of the Territory of Wisconsin 1839.
Survival actions are not new actions created by the death of the
victim.            They    are    actions     that   the   victim       would      have    had
available to him if he had survived.                    See Miller, 170 Wis. 2d at
436.
        ¶20     Survival         actions      are    brought      by    the       decedent's
personal representative to benefit the decedent's estate.                               Brown
v. Chicago & Nw. Ry. Co., 102 Wis. 137, 140-42, 77 N.W. 748

        10
       This court has discussed the history of survival and
wrongful death claims many times in the past, and a full
recitation of that history is not necessary here.     For a more
in-depth discussion of the history of these claims, see, e.g.,
Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91,
¶¶54-69, 293 Wis. 2d 38, 717 N.W.2d 216; Brown v. Chicago &
Northwestern Railway Co., 102 Wis. 137, 140-42, 77 N.W. 748
(1898); Woodward v. Chicago & Northwestern Railway Co., 23
Wis. 400, 405-06 (1868).



                                               10
                                                             No.      2012AP1493



(1898).      Statutory     survival   actions     exist    under   Wis.     Stat.
§ 895.01(1)(am), which states that "[i]n addition to the causes
of action that survive at common law," certain other types of
actions     survive   as     well.    Personal    injury    actions    seeking
damages for a decedent's injuries suffered before death fall
under the category of "other damage to the person" in Wis. Stat.
§ 895.01(1)(am)7. (formerly Wis. Stat. § 895.01(1) (1979-80)).
See   Wangen    v.    Ford    Motor   Co.,   97    Wis. 2d 260,      310,     294
N.W.2d 437 (1980).         "An action does not abate by the occurrence
of any event if the cause of action survives or continues."
Wis. Stat. § 895.01(2).
      ¶21    Certain relatives of tort victims are now also able to

bring actions for wrongful death.            Wrongful death actions were
created by statute in chapter 7, Laws of 1857.                     "A wrongful
death claim refers to the statutory cause of action belonging to
named persons for injuries suffered postdeath."               Bartholomew v.
Wis. Patients Comp. Fund, 2006 WI 91, ¶55, 293 Wis. 2d 38, 717
N.W.2d 216.      Since 1931, wrongful death plaintiffs have been
able to seek damages for loss of society and companionship.                  See
§ 2, ch. 263, Laws of 1931.11

      11
       Damages for loss of society and companionship are now
contained in Wis. Stat. § 895.04(4):

           Judgment for damages for pecuniary injury from
      wrongful death may be awarded to any person entitled
      to bring a wrongful death action.   Additional damages
      not to exceed $500,000 per occurrence in the case of a
      deceased minor, or $350,000 per occurrence in the case
      of a deceased adult, for loss of society and
      companionship may be awarded to the spouse, children
                                                      (continued)
                                      11
                                                                          No.     2012AP1493



        ¶22    Wrongful     death    actions       are       derivative    tort    actions.
Ruppa     v.    Am.      States     Ins.    Co.,        91     Wis. 2d 628,       646,    284
N.W.2d 318 (1979).          Thus, even though the wrongful death statute
creates a "new action" and "allows a person to recover his or
her    own     damages    sustained        because       of    the   wrongful     death    of
another," Miller, 170 Wis. 2d at 435-36, the person's right of
action depends not only upon the death of another person but
also upon that other person's entitlement to maintain an action
and recover if his death had not occurred.
        ¶23    Stated     differently,       for     a       wrongful    death    claim    to
exist, the decedent must have had a valid claim for damages
against the defendant at the time of his death.                            Id. at 439-40.
See also Wis. Stat. § 895.03.                 If the decedent would have been
barred from making a claim, the decedent's statutory beneficiary
also    would    be     barred.      To     illustrate,         if   a    party   signed    a
liability waiver before engaging in a dangerous activity and was
subsequently killed while participating in that activity, the
liability waiver would preclude the wrongful death claims of the
decedent's statutory beneficiaries.                       See Ruppa, 91 Wis. 2d at
646.
        ¶24    Although survival actions and wrongful death actions
are commonly intertwined, they are distinct.                             Often times, the
same    party     will    seek    recovery        for    both     survival      claims    and


        or parents of the deceased, or to the siblings of the
        deceased, if the siblings were minors at the time of
        the death.



                                             12
                                                                         No.      2012AP1493



wrongful     death    claims.         However,      a    party    need     not     seek    to
recover     for    both.      Indeed,        different     parties        might     file    a
wrongful death action and a survival action, respectively, for
the death of one person.              See Bartholomew, 293 Wis. 2d 38, ¶59.
In short, "[t]he two claims are separate claims for separate
injuries that may belong to different people."                      Id., ¶54.
                              B. The Discovery Rule
      ¶25    As noted above, the court has stated that a cause of
action accrues when three conditions are present: (1) a claim
capable of enforcement, (2) a party against whom the claim may
be enforced, and (3) a party with the right to enforce the
claim.      Barry, 127 Wis. at 573.               In Hansen v. A.H. Robins Co.,
113 Wis. 2d 550, 554, 335 N.W.2d 578 (1983), the court observed
that "there are three points in time when a tort claim may be
said to accrue: (1) when negligence occurs, (2) when a resulting
injury is sustained, and (3) when the injury is discovered."
Traditionally, most tort claims have been treated as accruing on
the date of injury because claimants usually are aware of their
injuries     when     they    occur.          However,         because     tort    victims
sometimes     are    unaware    of     injuries         when    they     happen,     strict
adherence     to     this    general    rule       "can    yield       extremely      harsh
results" if a tort victim discovers his injury after the statute
of limitations has run.          Id. at 556.
      ¶26    Hansen involved a question certified to this court by
the United States Court of Appeals for the Seventh Circuit.                               Id.
at   551.     Kathleen       Hansen    had    a   "Dalkon       Shield"        intrauterine
device (IUD) inserted by Dr. Fabiny in May 1974.                           Near the end
                                             13
                                                                      No.         2012AP1493



of May 1978, she began to have significant health issues.                                  On
June 13, she visited Dr. Macken, who examined her and told her
it was unlikely she had pelvic inflammatory disease (PID).                                 On
June    26,   she     visited     Dr.    Fabiny,     who     removed       her    IUD     and
concluded that she probably did have PID.                    Id. at 552-53.
        ¶27   On June 24, 1981, Hansen sued the IUD manufacturer——
A.H. Robins Company——in federal court, seeking recovery for her
injuries.      Id.    A.H. Robins moved for summary judgment, claiming
that the three-year statute of limitations on Hansen's claim had
expired.       The    district     court    concluded        that    Hansen       had    been
injured sometime before June 13, 1978.                       Because Hansen filed
suit more than three years after that date, the United States

District Court granted the motion for summary judgment.                             Hansen
appealed, and the Seventh Circuit certified a question of law to
this court.     Id.
        ¶28   In considering whether to institute a discovery rule
for tort actions in Wisconsin, this court noted that "[t]here
are two conflicting public policies raised by the statute of
limitations:        '(1)   That    of    discouraging        stale    and       fraudulent
claims, and (2) that of allowing meritorious claimants, who have
been as diligent as possible, an opportunity to seek redress for
injuries sustained.'"             Id. at 558 (quoting Peterson v. Roloff,
57 Wis. 2d 1, 6, 203 N.W.2d 699 (1973)).                       Although the prompt
adjudication     of    tort     claims     is   a   highly    desirable          goal,    the
court     continued,        a   discovery        rule      would     not        create     an
intolerable     risk       of   defendants      being   subjected          to    stale    or
fraudulent claims.          Id. at 559.         The court noted that defendants
                                           14
                                                                              No.       2012AP1493



would      still       be     protected      by    the      requirement      that    plaintiffs
prove their claims at trial, as well as the fact that claims
would accrue when injuries were discovered or reasonably should
have been discovered.                  Id.     The court also noted that the lack
of    a    discovery          rule    sometimes         allowed      wrongdoers      to    escape
liability by barring meritorious claims.                            Id.
          ¶29    In what has become a landmark decision authored by
Justice William Callow, a unanimous court "conclude[d] that the
injustice         of     barring      meritorious           claims      before    the   claimant
knows of the injury outweighs the threat of stale or fraudulent
actions."          Id.      Accordingly, the court established the discovery
rule       for     all        tort   claims       not       specifically         covered       by   a

legislatively            created      rule.          The    court    stated:      "tort    claims
shall      accrue        on    the    date     the     injury      is     discovered      or    with
reasonable         diligence          should      be       discovered,      whichever      occurs
first.          All cases holding that tort claims accrue at the time of
the negligent act or injury are hereby overruled."                                Id. at 560.
          ¶30    Given that Hansen did not involve a death, it is not
surprising         that       the    opinion      made      no   mention     of   the   specific
issues that now confront this court.                             The court did not discuss
whether the injured party or decedent was the only person who
could discover an injury.                    What it did discuss was the balance
of equities, the court's power to establish when claims accrue,
and the fact that other than for medical malpractice claims,
"the Wisconsin statutes do not speak" to the issue.                                 Id. at 559-
60.


                                                  15
                                                                 No.    2012AP1493



        ¶31   The court discussed the import of Hansen five years
later in Borello.         The court said that "Hansen stands for the
proposition that mere knowledge of the fact of an injury and
nothing more will not trigger the commencement of the period of
limitations."      Id. at 409.        The court determined that for a
claim to accrue, the plaintiff would have to discover, or in the
exercise of reasonable diligence should have discovered, "not
only the fact of injury but also that the injury was probably
caused by the defendant's conduct or product."              Id. at 411.        The
court    noted   that    this   approach    did   not   change    the   law,   but
"merely look[ed] at the cause of action in a new light that is
more likely to produce a just result."            Id. at 421.

        ¶32   In short, the basis for this court's adoption of the
discovery rule was, and remains, public policy.                   Therefore, if
the legislature has not superseded the discovery rule by statute
for a particular tort, the discovery rule will continue to apply
to claims for that tort in a way that protects the public policy
considerations set forth in Hansen and Borello.
                 C. Applicability of the Discovery Rule
        ¶33   As a preliminary matter, we note that the parties do
not dispute whether the discovery rule applies to both wrongful
death claims and survival claims; both parties agree that it
does.     Rather, the parties differ about the manner in which the
discovery rule applies——specifically, whether the rule applies
to   discovery    by    persons   other    than   decedents.       Although    the
parties' arguments sometimes conflate wrongful death claims and
survival claims for purposes of this analysis, the different
                                      16
                                                                                No.         2012AP1493



characteristics of each type of claim make it appropriate to
discuss       them    separately.               We    therefore       address    each        type    of
claim in turn.
                                    1. Wrongful Death Claims
        ¶34        Eight decades ago, this court stated that wrongful
death claims accrue at death.                         Terbush v. Boyle, 217 Wis. 636,
259     N.W. 859         (1935).           Terbush         followed     George        v.    Chicago,
Milwaukee & St. Paul Railway Co., 51 Wis. 603, 604, 8 N.W. 374
(1881), and it, in turn, was followed by Holifield v. Setco
Industries, Inc., 42 Wis. 2d 750, 757, 168 N.W.2d 177 (1969).
Those cases, however, were decided before Hansen's adoption of
the    discovery          rule      "for       all    tort    actions     other        than       those

already       governed        by    a    legislatively         created     discovery           rule."
Hansen, 113 Wis. 2d at 560.
        ¶35    As noted, the Hansen court declared that "tort claims
shall    accrue          on   the       date    the       injury   is   discovered           or    with
reasonable         diligence         should          be    discovered,     whichever           occurs
first.        All cases holding that tort claims accrue at the time of
the negligent act or injury are hereby overruled."                                     Id.        Given
the rigid construction of the rule in Terbush and the broad
holding       in    Hansen,        Hansen       might       well   be   read     as        overruling
Terbush.
        ¶36    In this appeal, the defendants' wrongful death defense
rests in part on the continuing viability of the Terbush rule.
The defendants offer Genrich as evidence of "the continued force
of    Terbush       in    non-medical           malpractice        wrongful      death        cases."
The relevant part of Genrich stated:
                                                     17
                                                                No.     2012AP1493


            We acknowledge that some of our past decisions,
       outside of the medical malpractice context, could be
       interpreted to conclude that claims for damages due to
       wrongful death accrue on the date of the decedent's
       death. See, e.g., Terbush v. Boyle, 217 Wis. 636, 640,
       259 N.W. 859 (1935), overruled on other grounds,
       Pufahl   v.  Williams,   179  Wis. 2d 104,   111,  506
       N.W.2d 747 (1993) (interpreting a former statute of
       limitations consistent with an even earlier statutory
       provision that provided, "'every such action shall be
       commenced within two years after the death of such
       deceased person'").

Genrich, 318 Wis. 2d 553, ¶32.
       ¶37    The    defendants'    reliance     on   Genrich   is    unavailing.
Genrich involved a death in a medical malpractice case.                         The
operative statute of limitations was Wis. Stat. § 895.55(1m)(a).
The spouse of the decedent sought to establish the death of the
decedent as the date of accrual under Wis. Stat. § 893.54(2).
The court determined that the statute did not apply in a medical
malpractice case.         The court's references to Terbush in Genrich
were    in    a     context   distinguishing      one   fact    situation     from

another.      The discussion did not determine whether accrual of a
wrongful death claim could occur after the decedent's death.
That decision was made in Hansen and Borello.
       ¶38    The defendants also argue that the court of appeals in
this   case       "scrapped   the   derivative    nature   of   wrongful      death
claims . . . .         If a beneficiary's discovery can resurrect a
decedent's survival claim, then a wrongful death claim is not
truly derivative.        Instead, it controls the survival claim."               We
disagree.
       ¶39    Defendants concede that the discovery rule applies to
wrongful      death     claims.       They   contend,      however,    that     the

                                        18
                                                                                 No.          2012AP1493



discovery rule applies only to decedents——that no third party is
capable       of    discovering       the    necessary            elements          of    a    wrongful
death and establishing its date of accrual.
        ¶40    We turn to an example that surfaced in oral argument
to test the defendants' position.                            X is killed instantly by a
negligent driver in a hit and run accident.                                    X's beneficiaries
have at least three years to file a wrongful death claim under
Wis.     Stat.       §§ 895.03,       895.04,          and    895.54(2).                 Under    these
hypothetical facts, X could not have brought a claim at the time
of   his      death     because      he     did    not       know       the    identity          of   the
negligent driver.               Thus, only a third party would be able to
discover       the      hit    and   run    driver's          identity         to    facilitate         a

claim.
        ¶41    If       X's      personal          representative                   or        statutory
beneficiary filed the claim within three years of death, there
would be no dispute whatsoever about what the decedent knew at
the time of death——it would not matter.
        ¶42    There      would,     however,          be    an     issue      if    the      personal
representative or beneficiary did not file within the three-year
period following the decedent's death.                              And there would be an
issue    if    the      personal      representative              or    beneficiary            did    not
discover the identity of the hit and run driver until after the
three-year period.
        ¶43    Defendants cannot argue about how the information was
discovered         if   it    was    discovered         and       acted       upon   within       three
years of death.               They must contend that the date of accrual is
always     the      decedent's       date    of    death          and    that    the       three-year
                                                  19
                                                                          No.         2012AP1493



statute        of     limitations       may    not     be    triggered          by    a    later
discovery.
        ¶44    We do not see this reasoning as consistent with the
compelling policy arguments made and adopted in Hansen.                                    Under
the defendant's theory, if a deceased person's wrongful death
beneficiaries did not discover the identity of the hit and run
driver    until       a     week   after     the    three-year   period         ended,      they
would be unable to recover any of the damages enumerated in Wis.
Stat. § 895.04(4), which are their damages.                       Conversely, the hit
and run driver would be rewarded for killing the victim instead
of badly injuring him, and he would not have to show that the
passage of time had created difficulties in defending the case.

This is not just.
        ¶45    We do not think the court of appeals was wrong when it
concluded       that        a   wrongful     death    claim    for    a    1980       homicide
accrued when the decedent's killer was finally charged with the
crime     in        2009.        See    McIntyre      v.    Forbes,       No.        2013AP611,
unpublished slip op., ¶¶8, 10 (Wis. Ct. App. Dec. 19, 2013).
And we do not think that the court of appeals was wrong here.
        ¶46    None        of   this    changes      the    derivative      nature         of   a
wrongful death claim.                  A wrongful death action is a cause of
action    for        the    benefit     of    designated      classes      of        relatives,
"enabling them by statute to recover their own damages caused by
the wrongful death of the decedent."                       Miller, 170 Wis. 2d at 435
(citing Brown, 102 Wis. at 140).                      It is a new action.                 Id. at
436.     However, the plaintiff in a wrongful death action has no
claim if the decedent would not have been able to "maintain an
                                               20
                                                                       No.      2012AP1493



action and recover damages" in his own right if he had not died.
Wis. Stat. § 895.03.           What this means is that "if death had not
ensued," a deceased person would still have been alive and able
to discover all the elements of the tort that resulted in his
death.       Thus, the beneficiary in a wrongful death action is
simply recognizing and establishing a claim that is based on the
claim that the decedent would have made if the decedent were
still alive.
       ¶47       We conclude that the discovery rule continues to apply
to wrongful death claims in the only way in which it reasonably
can:   by    permitting      those    claims     to   accrue     "on    the    date    the
injury      is    discovered   or    with    reasonable     diligence         should    be

discovered" by the wrongful death beneficiary, "whichever occurs
first."      Hansen, 113 Wis. 2d at 560.
                                 2. Survival Claims
       ¶48       As with wrongful death claims, the defendants do not
argue that the discovery rule does not apply to survival claims.
They argue that survival claims focus on discovery of an injury
by the decedent, not by a third party, and therefore that the
survival claims can accrue no later than death.
       ¶49       Contrary to a wrongful death action, "[t]he survival
action . . . is not a new cause of action.                       It is rather the
cause of action held by the decedent immediately before or at
death,       now     transferred      to     his      personal     representative."
Bartholomew, 293 Wis. 2d 38, ¶58 (quoting Keeton et al., supra,
§ 126,      at    942-43).     In    other   words,     upon     the    death    of    the
decedent, the decedent's personal representative "stands in the
                                            21
                                                                         No.      2012AP1493



shoes" of the decedent to pursue any claims the decedent may
have had.        See Merrill, 231 Wis. 2d at 554.
      ¶50     With respect to survival claims, the question facing
the   court       is    whether     the     personal     representative           similarly
"stands     in    the     shoes"     of    the     decedent     for   purposes      of   the
discovery rule.          We conclude that it does.
      ¶51     This      court's     opinion        in   Hansen    was     broad    in    its
language.         It applied to all tort claims, including survival
claims——a        fact     the    defendants        do   not     dispute——and       it    was
grounded in public policy.                   We can discern no public policy
reason to require survival claims to accrue before death or upon
death but not after death that would outweigh the public policy

reasons for permitting survival claims to accrue upon reasonable
discovery after death.             As Professor Dobbs states:

      The discovery rule is now familiar in personal injury
      statute of limitations cases. It logically applies as
      well   in   survival    actions,  which   are   merely
      continuations of the personal injury claim, although
      there is some dissent.    In the survival context, the
      main question is whether suit was brought within the
      prescriptive period after the decedent discovered or
      should have discovered the facts considered relevant
      in the particular jurisdiction.
2 Dan B. Dobbs, The Law of Torts § 379, 528-29 (2d ed. 2011)
(footnotes omitted).
      ¶52     The       defendants        point    to   two     cases,     Merrill,      231
Wis. 2d 546, and Lord v. Hubbell, Inc., 210 Wis. 2d 150, 563
N.W.2d 913       (Ct.     App.     1997),     which,     they    suggest,      require     a
different result.



                                              22
                                                                                 No.         2012AP1493



       ¶53     Merrill involved a single-car accident in which Shawn
Merrill was seriously injured.                        Three days later, on November
26,    1994,    Merrill       succumbed          to     his    injuries       and       died.       On
November      26,    1997——three          years       to    the     day    after       his    death——
Merrill's estate filed suit against the driver of the vehicle,
Joseph    Jerrick,      for        pain    and    suffering          and     medical         expenses
incurred       by    Merrill           during     the      three      days       following         the
accident.       Jerrick moved for summary judgment, arguing that the
statute of limitations expired three years after the date of the
accident, not three years after the date of Merrill's death.
The circuit court agreed and granted summary judgment.
       ¶54     The court of appeals reversed and remanded.                                     Id. at
558.     The court determined that there was an issue of material
fact as to when Merrill's claim accrued because the record did
not    indicate      "when        Merrill,      with       reasonable        diligence,          would
have     discovered         his     injury,       its      cause      and    the       defendants'
identities."          Id.     at       553.       Given       the     physical         and     mental
handicaps       suffered          by    Merrill       in      the    accident,          the     court
determined that it was unclear whether Merrill was aware of what
happened.           Thus,     the       court     "conclude[d]            that     the       estate's
survival claim accrued when Merrill with reasonable diligence
should have discovered his claim, here, no later than his date
of    death    when    his        claim    vested          with     the     estate's         personal
representative."            Id. at 557.
       ¶55     There are at least two explanations for the court's
"no later than his date of death" language.                                  First, Merrill's
personal representative had all the information necessary for a
                                                 23
                                                                      No.           2012AP1493



survival claim——the fact of the injury, the cause of the injury,
and    the   identity     of    the    defendant——at        the   time    of    Merrill's
death.       There was no issue about discovery after death and no
need to opine about discovery after death.                          The issue in the
case was whether "discovery" or accrual occurred before death or
at death.        The language of the case should be read in that
light, since the next sentence reads: "The record leaves room
for controversy concerning when a reasonable person with the
same degree of mental and physical handicap and under the same
or similar circumstances as Merrill should have discovered his
injury, its cause, its nature and the defendants' identities."
Id. at 557.          Second, the author of the opinion, Chief Judge
Thomas Cane, also authored the opinion in Miller v. Luther and
cited the Miller opinion in Merrill.                     The Miller opinion, dated
1992, stated that "a wrongful death action accrues at the time
of the decedent's death."               Miller, 170 Wis. 2d at 436 (citing
Terbush,     217   Wis. 2d at         640).        The   language    in     Merrill       may
simply echo the writing in Miller, restating a rule that has
become defunct.
       ¶56    For all practical purposes, Terbush was overruled by
Hansen and Borello, and it is expressly overruled here.
       ¶57    The second case is Lord.                   The defendants claim that
Lord    proves     that   the    focus     in      a   survival     claim      is    on   the
circumstances of the decedent, rather than on the circumstances
of the third party who eventually brings the claim.
       ¶58    Lord did not involve a determination of when a claim
accrued.       The    case      involved      plaintiffs      who    were      the      minor
                                              24
                                                                                   No.          2012AP1493



children         of       a    decedent       who    was     electrocuted          while       at    work.
Lord,      210       Wis. 2d at             155.      The     plaintiffs       argued          that     the
survival         claim          was     tolled       until        they    reached        the     age       of
majority;            the       court     of       appeals     disagreed.            There        was       no
discussion of when the claim accrued in Lord——the accrual of the
claim was undisputed——so Lord does not assist us in determining
when a claim might have accrued in this case.
          ¶59    The          defendants           also      contend        that     because           the
plaintiffs            are        bringing          suit      in     this     case        as      special
administrators,                 not     personal       representatives,            their        personal
knowledge of the discovery of the decedents' injuries is even
less relevant.                 This argument misses the point.                     The question in

this      case       is       whether       the    survival       claims    could    have        accrued
after      the       death       of     the       decedents.         Once    those       claims        have
accrued, it does not matter which party brings the claim, as
long as that party has the authority to do so.
          ¶60    In other words, simply because a party brings a claim
as    a    special            administrator         does    not     necessarily          mean       that    a
court       will          look        for     that     party's           discovery       as      special
administrator; the reference point after the death of a decedent
will need to be determined on a case-by-case basis.                                              In many
cases,         the    court       will       look    to     the    personal     representative's
knowledge.            In some cases, it might be appropriate to look to
the       special             administrator's             knowledge.            Sometimes,              the
appropriate inquiry might even be into the knowledge of a party
that      is    neither          the     personal         representative       nor       the     special
administrator.                 The key is for the court to identify the party
                                                      25
                                                     No.     2012AP1493



whose knowledge is most relevant to meeting the goals set forth
in Hansen and Borello and determine what that party's knowledge
means in terms of the accrual of the claim.       Once the claim has
accrued, it may then be brought by whomever has the authority to
bring it.
     ¶61    The defendants warn that a parade of horribles is sure
to follow if courts look to third parties when applying the
discovery rule.     It is true that this application of the rule
could permit the occasional stale claim to proceed.           However,
that risk is offset by the other protections in place to combat
stale claims.
     ¶62    In sum, because the personal representative "stands in

the decedent's shoes" for purposes of pursuing survival claims
on behalf of the decedent's estate, the discovery rule makes it
possible for those claims to accrue after the decedent's death.
Survival claims accrue "on the date the injury is discovered or
with reasonable diligence should be discovered" by either the
decedent or an appropriate third party (often the decedent's
personal representative), "whichever occurs first."        Hansen, 113
Wis. 2d at 560.
     ¶63    We acknowledge that not all states apply the discovery
rule to wrongful death and survival claims in the way it is
applied here.     However, we believe our decision reflects a clear
trend in the cases and is fully supported by the decisions in
Hansen and Borello.
                      D. Caveats for Plaintiffs


                                 26
                                                              No.      2012AP1493



       ¶64    The broad applicability of the discovery rule does not
guarantee that plaintiffs receive an advantage in tort cases.
In most cases, plaintiffs will benefit from filing their claims
sooner rather than later.        We emphasize the following points.
       ¶65    First,    the     discovery     rule     requires      reasonable
diligence on the part of the injured party.                  This requirement
applies in various ways to decedents, personal representatives,
special administrators, and wrongful death beneficiaries.                      For
example, if a decedent, with reasonable diligence, should have
discovered his injury——including the identity of the defendant——
prior to his death, then any survival claims pursued on his
behalf by his estate would have accrued prior to his death.

Likewise, if the decedent's wrongful death beneficiary should
have discovered the identity of the defendant shortly after the
decedent's     death,    the   beneficiary's      actual   knowledge    will    be
irrelevant——the claim will accrue.
       ¶66    The burden is on the defendant to raise the statute of
limitations as an affirmative defense.                See Robinson v. Mount
Sinai Med. Ctr., 137 Wis. 2d 1, 16-17, 402 N.W.2d 711 (1987).
However, once the defense has been raised, the circuit court
will   need    to   determine    whether    the   plaintiff   has,     in   fact,
satisfied the statute of limitations.                See TJ Auto LLC v. Mr.
Twist Holdings LLC, 2014 WI App 81, ¶¶14-15, 355 Wis. 2d 517,
851 N.W.2d 831.         This may require the court to make a factual
determination of when a claim accrued, including when the claim
reasonably should have been discovered.               As a practical matter,
plaintiffs filing suit more than three years after a decedent's
                                      27
                                                                     No.      2012AP1493



death will often have to make a showing that the delay in their
discovery of the claim was reasonable.
        ¶67     Second,   a    plaintiff     has    the    burden    of    proving   his
case.     That burden is not relaxed in older cases kept alive by
the discovery rule.             A plaintiff will often find that proving
his case has become more difficult because time has passed.
        ¶68     Third, the fact that the discovery rule is grounded in
public policy considerations means that its application in a
specific case may be weighed against competing public policy
considerations.           In   the   past,    this    court   has    identified       six
public        policy   considerations        that    courts    may    use    to     limit
liability:

        (1) the injury is too remote from the negligence; or
        (2) the injury is too wholly out of proportion to the
        culpability of the negligent tortfeasor; or (3) in
        retrospect it appears too highly extraordinary that
        the negligence should have brought about the harm; or
        (4) because allowance of recovery would place too
        unreasonable a burden on the negligent tortfeasor; or
        (5) because allowance of recovery would be too likely
        to open the way for fraudulent claims; or (6)
        allowance for recovery would enter a field that has no
        sensible or just stopping point.
Cole v. Hubanks, 2004 WI 74, ¶8, 272 Wis. 2d 539, 681 N.W.2d 147
(quoting        Becker    v.    State   Farm        Mut.   Auto.     Ins.    Co.,    141
Wis. 2d 804, 817-18, 416 N.W.2d 906 (Ct. App. 1987)).
        ¶69     The fact that survival and wrongful death claims can
accrue after death does not mean that those claims can always be
pursued after an extended period of time.                      The discovery rule
notwithstanding, requiring alleged tortfeasors to defend against
very old claims may sometimes "place too unreasonable a burden"

                                           28
                                                                      No.       2012AP1493



on those parties.           See id.      The discovery rule does not state
that such claims will always proceed; it is up to the courts to
balance the equities in such cases.
      ¶70     We   make   no      determination      as   to   the    balance     of    the
equities in this case.             The record is not sufficiently developed
for us to determine whether the defendants should have to defend
against these claims.             Rather, our decision is simply that it is
possible that the plaintiffs' claims accrued after the deaths of
the decedents.
            E. Summary Disposition and Constitutional Claims
      ¶71     Finally,      the    defendants     contend      that       the   court    of
appeals' decision to summarily reverse the circuit court's grant

of summary judgment violated their constitutional rights.                               The
defendants' argument on this point does not seem to be fully
developed, so we address it only briefly.
      ¶72     As the plaintiffs point out, the defendants' argument
presupposes that the court of appeals was incorrect.                             Because
the court of appeals was correct that the circuit court used the
wrong legal standard in its application of the discovery rule to
the   facts    of    this      case,   the    only    question       is     whether     the
defendants' constitutional rights were somehow violated by the
case being reversed summarily.
      ¶73     The court of appeals may dispose of a case summarily

      by order if the panel unanimously agrees on the
      decision; unanimously agrees the issues involve no
      more than the application of well-settled rules of law
      or the issues are decided on the basis of unquestioned
      and controlling precedent or the issues relate to
      sufficiency of evidence or trial court discretion and

                                             29
                                                                              No.      2012AP1493


       the record clearly shows sufficient evidence or no
       abuse of discretion; and the issues may be resolved by
       merely stating the reasons for the decision without a
       detailed analysis.
Wis. Ct. App. IOP VI-1 (Nov. 30, 2009).
       ¶74     In this case, the court of appeals determined that its
recent       decision       in     Beaver,    which       presented          the    same   legal
question and nearly identical facts, made this case appropriate
for    summary       disposition.        See    Christ,          No.   2012AP1493,         at    3.
Given the court's recent ruling in Beaver, we see no reason why
this     case        was    not      appropriate          for     summary           disposition.
Accordingly, we hold that summary disposition did not violate
the defendants' constitutional rights.
                                      IV. CONCLUSION
       ¶75     We hold that the discovery rule permits the accrual of
both survival claims and wrongful death claims to occur after
the    date     of    the        decedent's    death.            In    the     absence     of     a
legislatively created rule to the contrary, these claims accrue
when there is a "claim capable of present enforcement, a suable
party against whom it may be enforced, and a party who has a
present      right     to    enforce     it."           Emp'rs    Ins.       of     Wausau,     154
Wis. 2d at 231 (citation omitted).                       These criteria are not met
"until the plaintiff discovers, or in the exercise of reasonable
diligence should have discovered, not only the fact of injury
but also that the injury was probably caused by the defendant's
conduct or product."              Borello, 130 Wis. 2d at 411.
       ¶76     In    the    circumstances          of    this     case,       the    applicable
statute of limitations began to run when the survival claims and


                                              30
                                                                           No.         2012AP1493



wrongful        death       claims      were        discovered,     provided       that      the
plaintiffs          are   able     to    show       that   they    exercised      reasonable
diligence in investigating and discovering their claims.
        ¶77    Given        the    procedural         posture      of    this     case,      the
plaintiffs have not yet demonstrated that their claims accrued
less     than       three     years      before       they    filed      their    complaint.
Accordingly, we affirm the court of appeals and remand to the
circuit court for a determination as to whether the plaintiffs
have    satisfied         the     statute      of    limitations        under    our    accrual
rule.


        By    the    Court.—The         decision      of     the   court   of    appeals      is

affirmed.




                                                31
                                                                            No.    2012AP1493.pdr




        ¶78    PATIENCE                   DRAKE                 ROGGENSACK,                  C.J.
(dissenting).          Wrongful death is a statutory claim that arises
upon death and does not belong to the deceased, but rather, to
the statutory beneficiaries.                 It is a claim for loss of support
and companionship, which the deceased person would have provided
if he or she had lived.                   Because of the nature of the claim,
death is always the "injury" in a wrongful death action.                                 Stated
otherwise,      it     is    this    injury,          i.e.,    death,       that    causes    the

damages for loss of support and companionship that the statutory
beneficiaries sustain.1              Day v. Allstate Indem. Co., 2011 WI 24,
¶62, 332 Wis. 2d 571, 798 N.W.2d 199.                           Therefore, in regard to
an action for wrongful death, the "injury" that causes damages
is "discovered" upon the decedent's death.                              Terbush v. Boyle,
217   Wis.     636,    640,    259    N.W.        859    (1935)       (explaining      that    an
"action for wrongful death accrues at time of death").
        ¶79     I also conclude that death vests a survival action,

which       compensates      the    decedent          for     the    pain,    suffering       and
financial       loss    he    or    she     suffered          prior    to    death,     in    the
decedent's       estate.           Upon    vesting,           both    the    claim     and    any
recovery belong to the estate, which has three years to proceed
thereon.       Estate of Merrill v. Jerrick, 231 Wis. 2d 546, 557,
605   N.W.2d     645    (Ct.       App.    1999)        (concluding         that    "under    the

        1
       Wisconsin  Stat.   § 895.04  (2005-06)   lists potential
claimants in a wrongful death action.    The 2013-14 version of
the statutes lists the same potential claimants. All subsequent
references to the Wisconsin Statutes are to the 2005-06 version
unless otherwise noted.


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discovery rule" limitations period began to run no later than
the   date   of    death   whereon      the    survival    claim    vested    in    the
personal representative of decedent's estate).
      ¶80    This has been the law in Wisconsin for more than 80
years, which Hansen v. A.H. Robins Co., 113 Wis. 2d 550, 335
N.W.2d 578 (1983), did not change.               Because the majority opinion
fails to acknowledge the import of the differences in the two
types of claims now before us and gives no reason why actions
arising under Wis. Stat. § 895.03 and Wis. Stat. § 895.01 should

not accrue on the date of death as they have in the past, and in
so doing substitutes complexity and uncertainty for well-settled
law, I respectfully dissent.
                                  I.    BACKGROUND
      ¶81    The     decedents,   upon    whom    all     claims    before    us    are
based, were former employees of Uniroyal Inc.                        They died, on
average,     seven    years    before    the    July 13,    2006     complaint      was
filed.2      Plaintiffs       claimed   decedents'      deaths     were    caused    by

benzene-containing petroleum products employed in the workplace.
They asserted wrongful death and survival claims.                         The circuit
court dismissed all claims based on the three-year bar set out
in Wis. Stat. § 893.54(2), as interpreted in Merrill and Miller
v. Luther, 170 Wis. 2d 429, 489 N.W.2d 651 (Ct. App. 1992).                         The



      2
       Mary Henneman died June 19, 1995; Mae Heath died June 1,
1996; William Beaulieu died July 17, 1997; Gary Radosevich died
February 26, 1999; Sharon Clark died May 17, 2001; Gail Christ
died December 15, 2002; and Victor Grosvold died December 30,
2003.


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court of appeals summarily reversed and defendants petitioned
for review, which we granted.
                                           II.       DISCUSSION
                                    A.     Standard of Review
        ¶82    This        case         involves      interpreting            and      applying          Wis.
Stat. § 893.04, in regard to Wis. Stat. § 895.03, the wrongful
death    statute         and      Wis.     Stat.       § 895.01(1)(am)7.,                  the    survival
action        statute.              Statutory          interpretation              and       application
present questions of law that we independently review, while

benefitting          from    the        decisions          of   the     circuit       court        and    the
court of appeals.                Marder v. Bd. of Regents of the Univ. of Wis.

Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
                               B.       Statutory Interpretation
        ¶83    We       interpret          a   statute          to     determine           its    meaning.
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110.                                  In so doing, we "assume
that    the     legislature's              intent         is    expressed       in     the       statutory

language"          it   chose.            Id.,       ¶44.         Where       statutes           have    been
interpreted by Wisconsin appellate courts in the past, those
interpretations             affect        subsequent            interpretations.                  Adams    v.
Northland Equip. Co., 2014 WI 79, ¶30, 356 Wis. 2d 529, 850
N.W.2d 272 (concluding that prior interpretations of a statute
under    consideration              assist       our       current      interpretation              of    the
same statutes).             This principle is especially relevant when the
claim    is     based       on      a    statute       that       is    to    be     interpreted          and
applied       in     the    case         before      us     and      the     legislature           has    not
amended        the      statute           in     a     way       that        would     discount           our

                                                       3
                                                                No.   2012AP1493.pdr


interpretation.         See Wenke v. Gehl Co., 2004 WI 103, ¶35, 274
Wis. 2d     220,   682    N.W.2d      405    (concluding       that   legislative
acquiescence subsequent to judicial interpretation of a statute
is "a presumption to aid in statutory construction").
                          C.   Death-Related Actions
      ¶84   Actions "to recover damages for death caused by the
wrongful act, neglect or default of another" are barred if not
commenced      within     three    years.           Wis.   Stat.      § 893.54(2).
Wisconsin Stat. § 893.04 underlies the dispute before us because

it determines when that three-year period set out in § 893.54(2)
begins to run for wrongful death claims, Wis. Stat. § 895.04,
and   survival     actions,    Wis.    Stat.    § 895.01.        Section     893.04
provides:

      Computation of period within which action may be
      commenced.   Unless otherwise specifically prescribed
      by law, a period of limitation within which an action
      may be commenced is computed from the time that the
      cause of action accrues until the action is commenced.
It is the phrase, "cause of action accrues," from § 893.04 that
is our central concern because it determines when the three year
statute of limitations will bar commencement of wrongful death

and survival claims.
                          1.   Wrongful death claims
      ¶85   Wrongful death is not a claim that existed at common
law; it was created by statute.              Force v. Am. Family Mut. Ins.

Co., 2014 WI 82, ¶32, 356 Wis. 2d 582, 850 N.W.2d 866 (citing
Cogger v. Trudell, 35 Wis. 2d 350, 353, 151 N.W.2d 146 (1967)).
Therefore, our interpretation of Wis. Stat. § 893.04, setting
the   period     for    commencement    of     an    action,    and   Wis.    Stat.

                                        4
                                                               No.   2012AP1493.pdr


§ 895.03,      the   wrongful   death       statute,   are   interpretations        of
legislative creations.
       ¶86     However,    numerous     Wisconsin      appellate     courts       have
addressed wrongful death claims and the period of time during
which they may be commenced.                For example, more than 80 years
ago, we discussed a wrongful death claim in Terbush.                    There, we
decided whether Terbush's3 wrongful death claim against Boyle was
barred by the then operative two-year statute of limitations.
Terbush, 217 Wis. at 637.            To answer that question, we examined

Wis. Stat. § 330.15 (1931),4 which described the period during
which a wrongful death claim could be commenced as beginning
when "the cause of action has accrued."                Id.
       ¶87     We posited the question to be answered as, "When did
the cause of action accrue (1) on the date of injury, (2) on the
date of [] death, or (3) when the administrator was appointed?"
Id.        We explained that "'at the death of decedent, there are
real       parties   in   interest    who    may   procure   the   action     to    be

brought,'" id. at 640 (citation omitted), and that the statutory
term, "accrued," "evidences an intention to set a definite limit
to the period within which actions may be commenced."                       Id.     We
then concluded that an "action for wrongful death accrues at




       3
       Terbush was the administrator of the estate of William
Haude.    Terbush v. Boyle, 217 Wis. 636, 636, 259 N.W. 859
(1935).
       4
       Wisconsin Stat. § 330.15 (1931) is a predecessor statute
to Wis. Stat. § 893.04.


                                            5
                                                                      No.   2012AP1493.pdr


time of death and is barred if not commenced within two years
from that time."          Id.
       ¶88   Many years later in Lord v. Hubbell, Inc., 210 Wis. 2d
150, 563 N.W.2d 913 (Ct. App. 1997), Judge Margaret Vergeront,
writing for the court of appeals, thoughtfully discussed actions
for wrongful death.             Lord explained that a "wrongful death claim
belongs      to    the     persons     named       in   the    statute      [Wis.    Stat.
§ 895.04] who have suffered pecuniary loss and loss of society
and companionship because of [a] person's death."                        Id. at 165.

       ¶89   It     is    important       to   understand      that   "wrongful      death
beneficiaries seek recovery not for the injury suffered by the
deceased,         but     rather,      for       the    loss    sustained       to     the
beneficiaries because of the death."                     Day, 332 Wis. 2d 571, ¶62
(internal         quotation      marks     and      citation    omitted).           Stated
otherwise, it is the statutory beneficiaries who claim to be
injured in a wrongful death claim, not the person who has died.
Id.    Therefore, it is death of the decedent that is the injury

that causes beneficiaries to suffer damages for which recovery
may be available in a wrongful death action.                           See     Weiss v.
Regent    Props.,        Ltd.,   118      Wis.     2d   225,   230,   346    N.W.2d    766
(1984).
       ¶90   A wrongful death claim is derivative in the sense that
if the decedent did not have an actionable claim that his death
was "wrongful," i.e., tortious, a statutory beneficiary cannot
bring a subsequent wrongful death action.                       Miller, 170 Wis. 2d
at    437.        For    example,    if    the     statute     of   limitations      on   a
decedent's personal injury claim had expired before decedent's

                                               6
                                                                          No.   2012AP1493.pdr


death, a claim for wrongful death will not lie.                            Lord, 210 Wis.
2d at 166.          It is this derivative nature of a wrongful death
claim       that    has    led    courts       to   conclude       that    an   action        for
wrongful death accrues no later than the death of the decedent.
Furthermore, whether the decedent knew who was a cause of his
death does not affect the accrual of a beneficiary's wrongful
death claim because that claim arises, i.e., comes into being,
at the decedent's death.                  It is a new claim that was not in
existence before decedent's death.                        Miller, 170 Wis. 2d at 435-

36; see Lord, 210 Wis. 2d at 166.
        ¶91    Wisconsin Stat. § 893.04 and cases interpreting when
an action "accrues," in the context of wrongful death claims,
require dismissal of plaintiffs' wrongful death claims herein.
Let    me     explain.         First,   the     injured      party    is    the    statutory
beneficiary in a wrongful death claim, not the deceased person.
Day, 332 Wis. 2d 571, ¶62.                     Wrongful death is a new cause of
action that arises upon death.                      Id.     As Lord determined, those

persons named in the wrongful death statute "suffered pecuniary
loss    and     loss      of    society    and      companionship         because    of       [a]
person's death."           Lord, 210 Wis. 2d at 165.                 This is so because
death of a person deprived the beneficiaries of the financial
support       and   companionship         of    that      person.     Second,       it    is    a
person's death that is the injury sustained by a wrongful death
beneficiary.         Day, 332 Wis. 2d 571, ¶62 (explaining that it is
the decedent's death that is the injury to the beneficiary).
        ¶92    Third,      each     plaintiff's            claim     is     caused       by    a
decedent's death.              Weiss, 118 Wis. 2d at 230.             Stated otherwise,

                                                7
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without death of a person, there is no possibility of a wrongful
death claim.             Therefore, at the death of a person, the injury
and its cause of damages to statutory beneficiaries are known to
wrongful death plaintiffs.5                   When an injury and its cause are
known, a tort claim has been discovered.                   That is, the claim has
accrued.          Miller, 170 Wis. 2d at 436.
       ¶93        My conclusion is consistent with Hansen, in which we
first declared the discovery rule that affected when common law
tort claims accrue.            We reasoned that "there are three points in

time       when    a   tort   claim     may    be   said   to   accrue:      (1)    when
negligence occurs, (2) when a resulting injury is sustained, and
(3) when the injury is discovered."                   Id. at 554.        In explaining

the discovery rule, we said, "[u]nder this rule, a claim does
not accrue until the injury is discovered or in the exercise of
reasonable diligence should be discovered."                       Id. at 556.         We
concluded         that    under   the   discovery     rule,     "tort    claims    shall
accrue on the date the injury is discovered or with reasonable

diligence should be discovered, whichever occurs first."                          Id. at
560.
       ¶94        Until today, Wisconsin appellate courts have concluded
that a claim for wrongful death accrues no later than decedent's
death.       Holifield v. Setco Indus., Inc., 42 Wis. 2d 750, 757,
168 N.W.2d 177 (1969) (concluding that an action for wrongful


       5
       If a potential beneficiary of a wrongful death claim is a
minor child, the period of limitations in which to bring the
action may be tolled by Wis. Stat. § 893.18(2)(a).        Section
893.18(2)(a) does not apply to plaintiffs in this action.


                                               8
                                                                                No.    2012AP1493.pdr


death pursuant to Wis. Stat. § 895.03 must be brought within
three        years    of    death).          Our    conclusion        in        Holifield,      which
preceded Hansen, remains the operative law as Miller, which was
decided subsequent to Hansen, demonstrates.                                Miller, 170 Wis. 2d
at 436 (explaining that a wrongful death action brought under
§ 895.03 "accrues at the time of the decedent's death").
        ¶95        In the claims now before us, the injury, which is the
decedent's death, was discovered more than three years before
this lawsuit was filed.                 Therefore, consistent with Hansen, all

of   the      wrongful       death     claims       accrued         more    than       three    years
before this lawsuit was filed and they must be dismissed.                                            Id.
Hansen did not overrule Terbush, Holifield and other cases that
have followed their conclusions; but rather, Hansen's reasoning
is consistent with our prior decisions in regard to when a claim
for wrongful death accrues.
        ¶96        Appellate    courts       have       established         a    clear,       easy    to
follow        rule    that     the    date    on        which   a   wrongful          death    action

accrues is the date of death.                           That rule is not dependent on
which Wis. Stat. § 895.04 plaintiff filed the wrongful death
action        or    whether     his    or     her       investigation           of    the   personal
injury of the decedent was reasonable.                                The majority opinion
errs because it misperceives the nature of wrongful death claims
and,        relying    on    public     policy,6          it    conflates        discovery       of    a
decedent's claim for personal injury with the statutory claim of
wrongful           death    that     arises    upon        death.          In    so    doing,        the


        6
            Majority op., ¶32.


                                                    9
                                                                         No.    2012AP1493.pdr


majority opinion substitutes complexity and uncertainty for what
has been well-settled law.
                                     2.   Survival claims
        ¶97     As    with     claims     for     wrongful     death,    survival      claims
have received frequent court attention.                         Survival claims are so
named       because     they    belonged         to   the    deceased    person      and    they
survive his or her death.7                 Wangen v. Ford Motor Co., 97 Wis. 2d
260,        310-11,    294     N.W.2d      437    (1980).        Survival      claims       seek
compensation for personal injury damages due to the pain and

suffering and financial loss the deceased endured before death.
Merrill, 231 Wis. 2d at 549.                      Once decedent's estate is vested

with decedent's survival claim, both the cause of action and the
recovery belong to the estate.                         Day, 332 Wis. 2d 571, ¶61.
Accordingly,           an    estate       cannot      remain     inactive      and    thereby
preserve its claim.              The estate has an obligation to investigate
circumstances leading to the decedent's death.                              See Korkow v.
Gen. Cas. Co. of Wis., 117 Wis. 2d 187, 198, 344 N.W.2d 108

(1984) (explaining that the "purpose of statutes of limitations
is     to     ensure        prompt    litigation        of     claims    and    to    protect
defendants           from     fraudulent         or   stale     claims     brought         after
memories have faded or evidence has been lost.").
        ¶98     Merrill       addressed        the    question     of   when     a   survival
claim        accrues    in     light      of    the    discovery    rule       announced      in
Hansen.        Merrill, 231 Wis. 2d at 551-52.                     Jerrick argued that
the claim accrued at the time of the auto accident when the

        7
       In contrast, wrongful death claims belong                                      to     the
beneficiaries identified in Wis. Stat. § 895.04.


                                                 10
                                                                        No.     2012AP1493.pdr


tortfeasor was known.              Id. at 553.          Merrill countered that if
the injured person were in a coma, he might not know who injured
him.     Id. at 556.
       ¶99     The   court    did     not     address      the    circumstance          of   an
injured person in a coma.                 Instead, the court reasoned that the
personal representative who was proceeding on Merrill's survival
claim "stands in the shoes of the decedent, and the estate is
entitled      only    to    what     the     decedent      would    have       had     if    the
decedent were living."                Id. at 554 (internal quotation marks

omitted).         Therefore,       once     the    survival      action    vests        in   the
personal representative, a survival action accrues and a lawsuit
to   bring     forward      that     claim    must    be    commenced          within    three
years.       Id. at 557; Lord, 210 Wis. 2d at 169.
       ¶100 Here, all the survival claims vested in the decedents'
estates      more    than    three    years       before   the     lawsuit       was    filed.
Because the estate took no action within three years, Wis. Stat.
§ 893.54(2) bars these survival actions.                         Lord, 210 Wis. 2d at

169.     This well-settled rule of law has provided certainty and
has encouraged prompt settling of claims and has facilitated
closing      of   estates.         The     majority     errs     when     it    substitutes
complexity and uncertainty for well-settled law.
                                   III.      CONCLUSION
       ¶101 Wrongful death is a statutory claim that arises upon
death and does not belong to the deceased, but rather to the
statutory beneficiaries.              It is a claim for loss of support and
companionship, which the deceased person would have provided if
he or she had lived.           Because of the nature of the claim, death

                                              11
                                                                                  No.    2012AP1493.pdr


is   always           the     "injury"       in    a   wrongful        death      action.       Stated
otherwise,            it    is      this   injury,          i.e.,    death,    that       causes   the
damages for loss of support and companionship that the statutory
beneficiaries sustain.8                    Day, 332 Wis. 2d 571, ¶62.                     Therefore,
in regard to an action for wrongful death, the "injury" that
causes          damages        is     "discovered"           upon     the     decedent's        death.
Terbush,          217       Wis.     at    640     (explaining          that      an    "action    for
wrongful death accrues at time of death").
       ¶102 I also conclude that death vests a survival action,

which compensates the decedent for pain, suffering and financial
loss       he    or     she      sustained        prior      to     death,   in    the    decedent's
estate.          Upon vesting, both the claim and any recovery belong to
the estate, which has three years to proceed thereon.                                         Merrill,

231 Wis. 2d at 557 (concluding that "under the discovery rule"
limitations period began to run no later than the date of death
whereon the survival claim vested in the personal representative
of decedent's estate).

       ¶103 This has been the law in Wisconsin for more than 80
years,          which       Hansen     did    not      change.          Because         the   majority
opinion fails to acknowledge the import of the differences in
the two types of claims now before us and gives no reason why
actions          arising         under     Wis.        Stat.      § 895.03        and    Wis.   Stat.
§ 895.01 should not accrue on the date of death as they have in
the past, and in so doing substitutes complexity and uncertainty
for well-settled law, I respectfully dissent.

       8
       Wisconsin Stat. § 895.04 lists who may be a claimant in a
wrongful death action.


                                                       12
                                                     No.   2012AP1493.pdr


     ¶104 I   am   authorized   to    state   that   Justice    ANNETTE
KINGSLAND ZIEGLER joins this dissent.




                                 13
    No.   2012AP1493.pdr




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