                                                             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.)
  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.




                                      2
                                                                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,
                                                             FILED
            Defendants-Respondents.
                                                        JUL 22, 2014
                                                           Diane M. Fremgen
-----------------------------------------------         Clerk of Supreme Court


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.




      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



    ¶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.




                                               3
                                                                         No.    2012AP2402



      ¶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.").

                                           4
                                                                           No.    2012AP2402



(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.

                                            5
                                                                          No.     2012AP2402



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.


                                           6
                                                                           No.    2012AP2402



      ¶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




                                               7
                                                                   No.     2012AP2402



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.

                                          8
                                                                           No.    2012AP2402



               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.

                                             9
                                                                       No.    2012AP2402



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.

                                             10
                                                                               No.    2012AP2402



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).

                                               11
                                                              No.    2012AP2402



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.

                                       12
                                                              No.    2012AP2402



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.

                                     13
                                                             No.   2012AP2402



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).

                                    14
                                                                No.   2012AP2402



      ¶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.

                                       15
                                                                          No.      2012AP2402



          • 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.

                                             16
                                                   No.   2012AP2402


    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)).

                                 17
                                                          No.   2012AP2402



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.").

                                 18
                                                  No.   2012AP2402


    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).

                                 19
                                                     No.    2012AP2402


    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
                                 20
                                                                    No.   2012AP2402



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.

                                        21
                                                                   No.     2012AP2402



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);

                                         22
                                              No.   2012AP2402




  • 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).

                          23
                                                                      No.    2012AP2402



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.

                                           24
                                                                       No.       2012AP2402



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.

                                           25
                                                                     No.   2012AP2402



§ 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




                                          26
                                                      No.   2012AP2402



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 common-

law 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).

                                  27
                                                                   No.   2012AP2402



       ¶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).

                                        28
                                                                           No.    2012AP2402



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.

                                              29
                                                         No.   2012AP2402



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.

                                   30
                                                                     No.     2012AP2402



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:

                                           31
                                                                 No.   2012AP2402



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.

                                         32
                                                                                 No.     2012AP2402



      ¶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
                                              33
                                                                            No.     2012AP2402



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.

                                             34
                                                           No.   2012AP2402



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.

                                    35
                                                                            No.    2012AP2402



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
                                                36
                                                                          No.     2012AP2402



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).

                                               37
                                                                            No.      2012AP2402



      ¶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.

                                              38
                                                                               No.     2012AP2402



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 nine-

and-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).

                                             39
                                                                   No.     2012AP2402



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).

                                        40
                                                                     No.     2012AP2402



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).

                                           41
                                                                          No.     2012AP2402



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).

                                             42
                                                              No.    2012AP2402



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).

                                     43
                                                                         No.    2012AP2402



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:


                                            44
                                                                No.    2012AP2402


    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

                                     45
                                                                          No.     2012AP2402



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).

                                          46
                                                                     No.   2012AP2402



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.

                                         47
                                                   No.   2012AP2402



    ¶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 and the cause is remanded to the circuit court.




                               48
                                                                    No.    2012AP2402.dtp


       ¶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
                                  1
                                                                    No.   2012AP2402.dtp

      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.,




                                           2
                                                    No.   2012AP2402.dtp


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
                              3
                                                          No.   2012AP2402.dtp

       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
                                    4
                                                                 No.    2012AP2402.dtp


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.




                                      5
                                                No.   2012AP2402.dtp


    ¶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.




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                                                                     No.    2012AP2402.pdr


      ¶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




                                               1
                                                               No.    2012AP2402.pdr


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).

                                         2
                                                                      No.    2012AP2402.pdr


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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                                                              No.   2012AP2402.pdr


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.

                                         4
                                                                               No.    2012AP2402.pdr


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.

                                                    5
                                                                 No.   2012AP2402.pdr


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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                                                        No.   2012AP2402.pdr


                        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.




                                    7
                                                                      No.    2012AP2402.akz


       ¶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

                                              1
                                                                   No.    2012AP2402.akz


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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