EVERYTHING YOU NEED TO KNOW ABOUT CAR, TRUCK AND MOTORCYCLE WRONGFUL DEATH CASES IN WISCONSIN

Wisconsin Car and Truck Wrongful Death Cases 

The loss of a loved one is one of life’s most difficult experiences.  This is especially true when the loss is caused by someone’s negligence.  The most common Wisconsin wrongful death claims arise out of car and truck accidents.  Last year there were 92 fatalities on Wisconsin roads in Milwaukee County alone.  Dane County reported 29 fatalities for that same year followed by Waukesha and Racine with 20 roadway deaths each.

Wisconsin Motorcycle Wrongful Death Cases

Motorcycle deaths have increased in Wisconsin as well.  One study found that Wisconsin ranks as the sixth most dangerous state for motorcycle riders, with 112 deaths reported and 581 injuries during the time period studied.

Wisconsin Pedestrian Wrongful Death Cases

Pedestrian deaths in Wisconsin increased by 50 percent between 2021 – 2022.  In this one-year period, Wisconsin pedestrian deaths increased from 50 to 72.  This increase is attributed directly to drivers being distracted while driving.  The biggest distraction is drivers using their phone while driving.

Wisconsin Bicycle Wrongful Death Cases

Wisconsin bicycle accidents also result in wrongful death claims in Wisconsin.  Fatal bicycle accidents in Wisconsin reached a low in 2010 but have been rising since then.

Wisconsin Statute of Limitations in a Wrongful Death Claim 

In Wisconsin there is generally a three-year statute of limitations in personal injury cases.  However, an action brought to recover damages for death caused by the wrongful act, neglect or default of another and arising from an accident involving a motor vehicle must be commenced within two years after the cause of action arises. 

WISCONSIN WRONGFUL DEATH ATTORNEY 

            Wrongful death cases are complicated.  Many attorneys do not understand the difference between a Wisconsin wrongful death claim and a Wisconsin Survival Action and the different types of damages recoverable under each.

Wisconsin Wrongful Death Claim 

            A Wisconsin wrongful death claim caused by a truck accident, car accident or motorcycle accident is brought by the deceased’s loved ones to obtain compensation for their own losses arising out of the wrongful death.

In many states only a Personal Representative of the estate can file a wrongful death claim.  In Wisconsin a family member can file a wrongful death claim for injuries he or she suffered as a result of the death of a loved one.  In Wisconsin the order in which a surviving family member can file a wrongful death claim for a loved one killed in a car, truck or motorcycle accident is as follows:

• Surviving spouse (or domestic partner)
• Children
• Grandchildren
• Parents
• Grandparents
• Siblings

Damages Available for Recovery in a Wisconsin Wrongful Death Claim

In Wisconsin, there are two types of damages recoverable in a wrongful death claim, economic damages (sometimes call pecuniary damages) and non-economic damages (sometimes called non-pecuniary damages).

Wrongful death economic damages in Wisconsin include items such as:

• Funeral bills
• Wage loss
• Medical bills
• Dollar value of the loss of the deceased’s income over the course of their work life expectancy
• Value of household services the deceased would have provided to the family

In Wisconsin there is no monetary cap on the amount that can be recovered for economic damages.

The second type of damages recoverable in a wrongful death claim are non-economic damages.  Non-economic damages in a wrongful death claim generally refers to the amount that can be recovered for the loss of society and companionship of the deceased individual.  While no amount of money can compensate an individual for the loss of society and companionship of a loved one, the Wisconsin legislature elected to place a cap on the amount a family member can recover for the loss of society and companionship of a loved one in a wrongful death claim.

In Wisconsin, damages for loss of society and companionship are capped at $350,000 for the loss of an adult loved one and $500,000 for the death of a minor child.  In many states there is no cap on wrongful death loss of society and companionship awards.  The Wisconsin cap on non-economic damages in a wrongful death claim is archaic and should not just be increased but should be eliminated altogether.  A Wisconsin jury of our peers is in the best position to make a fair and just award for loss of society and companionship in a wrongful death claim, not the Wisconsin legislature.

It is important to note that punitive damages are not recoverable in a Wisconsin wrongful death claim.  Punitive damages are damages awarded to punish a wrongdoer and require an aggravated form of conduct by the wrongdoer.  However, in a Wisconsin wrongful death claim there can be no recovery for punitive damages in a civil case regardless of how aggravated the wrongdoer’s conduct is.

Punitive damages, however, are allowed in a death survival action discussed below.

Compensation Set Aside for Minor Children in a Wisconsin Wrongful Death Claim

          If the surviving spouse in a wrongful death claim has minor children, the Wisconsin wrongful death statute requires the Court determine the amount, if any, to be set aside for the protection of the children.  The Court is to consider the age of the children, the amount involved, the “integrity” of the surviving spouse and any other facts the Court deems relevant and appropriate.  The amount to be set aside for minor children cannot be in excess of 50 percent of the net amount received after costs of collection.

The Wisconsin wrongful death statute specifically provides that every settlement in a wrongful death case where the person who passed away has minor children under 18 years of age will be void unless approved by a Court and a determination made as to the amount, if any, to be set aside for the minor children.

Wisconsin Survival Action Arising out of the Death of a Loved One

             Many people, including many lawyers, incorrectly use the term wrongful death claim when what they are really referring to is a Wisconsin Survival Action.  It is important for your lawyer to correctly distinguish between a Wisconsin Wrongful Death Action and a Wisconsin Survival Action as different damages are recoverable for each.  Unlike what we described above for wrongful death claims, in a survival action there are no monetary caps on recovery and punitive damages are recoverable if the correct evidentiary showing can be made to the Court.  In Wisconsin a survival action can be brought on behalf of the estate of a person who has passed away in a car accident, truck accident, motorcycle accident or other accident caused by someone else’s actions.

A Wisconsin Survival Action is brought by the Personal Representative or Special Administrator of an estate to recover the damages the deceased person would have been entitled to if he or she had not passed away.

One of the most common elements of damages in a Wisconsin Survival Action is for the pain and suffering the deceased person endured as a result of the accident but before he or she passed away.  Sometimes it may be weeks, months or even years between the time of the accident and the time the victim passes away.  Damages for pain and suffering are awarded for that entire period of time.

There are cases where a victim passes away seconds or minutes following an accident.  If handled correctly by your attorney, damage awards in a survival action can be very substantial even where the victim lives for only a very short period of time following the accident.  An insurance company will try to show that the victim passed away immediately following the accident and therefore there is no conscious pain and suffering.  It is important for your attorney to talk to everyone present at the scene of the accident, to first responders and other health care providers to establish that there was a time period, even if short, of pain and suffering following the Wisconsin car, truck or other accident.

Other damages that may be awarded in a Wisconsin Survival Action other than conscious pain and suffering include:

• Medical bills incurred from the accident
• Wage loss
• Emotional distress
• Property damage from the accident
• Punitive damages when supported by the required evidence

Whenever possible both a wrongful death action and a survival action should be filed in Wisconsin following a fatal car, truck, motorcycle or other accident.  Lawyers without the proper experience can focus entirely on the wrongful death claim and forget to pursue the survival action.  Survival actions often result in a large monetary recovery.  Even though the survival action is owned by the Estate, and brought by a Personal Representative, the recovery is eventually distributed to the deceased’s next of kin and can help offset the family’s monetary loss resulting from the death of a loved one.

How Mingo & Yankala can help with your Wisconsin Wrongful Death Claim and Survival Action 

            Following the death of a loved on in a tragic car, truck, motorcycle or pedestrian accident, it may be that the last thing on your mind is pursuing a claim for monetary damages.  Good lawyers understand that monetary damages can never come close to compensating a family for the loss of a loved one.  Good lawyers also understand that monetary damages are the best the legal system can do to offer some form of compensation to the surviving family following a fatal Wisconsin car, truck or motorcycle accident.

The last thing you want to happen following the loss of a loved one is to be hurt again by hiring an attorney who does not have the proper skill and experience to obtain full compensation for the surviving family members following an accident involving the death of a loved one.

At Mingo & Yankala we have more than 30 years of experience working with Wisconsin wrongful death and survival actions following a fatal car, truck, motorcycle and other accidents.  We know what damages the surviving family is entitled to recover and we know how to maximize the recovery for each item of damages.

At Mingo & Yankala we not only construct strong legal cases, we also build long-term relationships with our clients.  That relationship can be as important to our clients as is the monetary recovery we obtain for them.

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