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Petta v. ABC Insurance Co.2/24/2005
arties agree have not made them whole.
. Travco counters by arguing that the Rimes made-whole doctrine applies only within the confines of an insurer/insured relationship. Because John and Rachelle are not its insureds, Travco contends that Rimes protections simply do not apply to extinguish its subrogation interests. Travco further argues that if Rimes is extended beyond an insurer/insured relationship, then in cases with multiple plaintiffs, those plaintiffs will be pitted against one another to race to settle with the defendant first in order to thwart the other plaintiffs' rights by asserting the settlement did not make the settling plaintiff whole.
. We agree with John and Rachelle that equity requires extending Rimes to wrongful death plaintiffs. We begin with a discussion of the wrongful death statute and how that permits John and Rachelle to control the claim for property damage to Dayle's wrecked vehicle as well as to claim medical and funeral expenses even though they did not pay for these expenses. From there, we discuss subrogation principles and why the "antisubrogation" rule of the made-whole doctrine should be extended to wrongful death plaintiffs. And before closing, we comment on Travco's and the court of appeals' concern that extending Rimes outside the insurer/insured relationship will result in injustice.
A.
. A wrongful death action is purely a creature of statute, since at common law no such right to recovery existed. Weiss v. Regent Properties, Ltd., 118 Wis. 2d 225, 230, 346 N.W.2d 766 (1984). The purpose of the wrongful death statute, Wis. Stat. § 895.04, is "to compensate for loss of the relational interest existing between the beneficiaries and the deceased." See Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 560-61, 514 N.W.2d 399 (1994) (citations omitted). To this end, § 895.04(4) allows wrongful death plaintiffs to recover pecuniary injury, as well as loss of society and companionship.
. A "pecuniary injury" is the loss of any benefit that a beneficiary would have received from the decedent if the decedent had lived. See Holt v. State Farm Fire & Cas. Co., 151 Wis. 2d 455, 460, 444 N.W.2d 453 (Ct. App. 1989). This includes claims for loss of support, contribution, and inheritance. See Schaefer v. Am. Fam. Mut. Ins. Co., 192 Wis. 2d 768, 792, 531 N.W.2d 585 (1995); Holt, 151 Wis. 2d at 460; 1 The Law of Damages in Wisconsin §§ 16.29 (Russell M. Ware et al. eds., 2000). A lost inheritance is "the pecuniary value of the addition to the estate which the decedent in reasonable probability would have accumulated and left to his or her heirs had the decedent lived a natural life span." Schaefer, 192 Wis. 2d at 775.
. Concerning the property damage, Travco notes that John and Rachelle did not establish that they would have derived a benefit from the vehicle had Dayle survived; nor did they establish a reasonable probability that Dayle would have left the vehicle to them. Thus, Travco argues John and Rachelle are not entitled to retain any settlement proceeds for the property damage expense.
. John and Rachelle argue that they might have inherited the vehicle; they just have not established this yet. Alternatively, John and Rachelle argue that if this claim belonged to Dayle's estate, Wis. Stat. § 895.04(6) provides that where a person's wrongful death "creates a cause of action" in favor of both the decedent's estate and a spouse or relative, "such spouse or relatives may waive and satisfy the estate's cause of action in connection with or as part of a settlement and discharge of the cause of action of the spouse or relatives."
. Wrongful death beneficiaries are not au
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