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Petta v. ABC Insurance Co.2/24/2005
tomatically entitled to recover for pecuniary loss resulting from a parent's wrongful death. Keithley v. Keithley, 95 Wis. 2d 136, 138, 289 N.W.2d 368 (Ct. App. 1980). It is well-established that "the survivors must prove their loss." Id. Travco correctly notes that John and Rachelle have not established they incurred any inheritance loss or loss of benefit due to the vehicle's destruction. But we agree with John and Rachelle that Wis. Stat. § 895.04(6) empowers them to control the settlement of any claims the estate had against the tortfeasor.
. Here, the accident that caused Dayle's death clearly created a cause of action for property damage in favor of her estate. Consequently, to the extent that they have a cause of action, John and Rachelle were allowed to "waive and satisfy" that cause of action "in connection with or as part of" their wrongful death settlement. See Wis. Stat. § 895.04(6). Having apparently done so as part of their full settlement and release, the question is what happens to Travco's subrogated interest for the payments it made for the property damage.
. Before answering that question, we must next turn to John and Rachelle's ability to claim the medical and funeral expenses Travco has already paid, for these claims also carry Travco's subrogated interests.
B.
. The wrongful death statute allows relatives of the deceased to seek more than the "loss of relational interest existing between the beneficiaries and the deceased." See Chang, 182 Wis. 2d at 560-61. The legislature has specifically provided the relative of a decedent a claim to recover expenses that the relative may not have incurred. Wisconsin Stat. § 895.04(5) states, "the relative may recover such medical expenses, funeral expenses, including the cost of a cemetery lot, grave marker and care of the lot." Recovery is not contingent on the relative having paid these expenses, as the claim can be made "on behalf of himself or herself or any person who has paid or assumed liability for such expenses." Id.
. John and Rachelle agree they did not pay for the medical or funeral expenses, but claim that because the statute specifically gives them the right to claim funeral and medical expenses, they are nonetheless entitled to recover them. John and Rachelle are correct. In Chang, 182 Wis. 2d at 561, this court concluded that " he right to sue and recover under the wrongful death statute is vested in the classes of beneficiaries listed in the statute." John and Rachelle are among the beneficiaries listed in the statute. See Wis. Stat. § 895.04(2). Thus, John and Rachelle have the right to claim and recover funeral and medical expenses, even though they did not pay for them.
. The right to sue under the wrongful death statute, however, is distinguished from the ownership of the recovery. Weiss, 118 Wis. 2d at 230; see also Chang, 182 Wis. 2d at 561. In Chang, this court noted that " ecovery under the wrongful death statute is keyed to actual loss." Id. at 560. Thus, notwithstanding the wrongful death beneficiaries' vested right to claim and recover damages listed in the statute, and to "waive and satisfy" the estate's claim for property damage as part of their settlement, the actual ownership of that recovery requires the existence of damages, which in turn requires proof of loss. Id. at 561. In other words, wrongful death plaintiffs are not entitled to a windfall simply because the statute has provided them with a claim or ability to recover damages they have not incurred.
. John and Rachelle agree that they did not pay for the medical, funeral, and property damage expenses, so they have no ownership rights to any proceeds on those claims. But con
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