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11/18/83 AUGUST W. DEMEULENAERE AND ELDEAN M.

November 18, 1983

AUGUST W. DEMEULENAERE AND ELDEAN M. DEMEULENAERE, PLAINTIFFS-RESPONDENTS,
v.
TRANSPORT INSURANCE COMPANY, A FOREIGN CORPORATION, PLAINTIFF-APPELLANT, SANGAMO WESTON, INC., A FOREIGN CORPORATION, AND FIREMAN'S FUND INSURANCE COMPANY, A FOREIGN CORPORATION, DEFENDANTS



Appeal from an order of the circuit court for Milwaukee county: William A. Jennaro, Judge.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Wedemeyer

Transport Insurance Co., the workers' compensation carrier for August W. DeMeulenaere's (August) employer, appeals from an order entered March 2, 1983, wherein the trial court approved the distribution of settlement proceeds of a third party action, pursuant to sec. 102.29(1), Stats. *fn1 The trial court ruled that the amount Eldean M. DeMeulenaere (Eldean) received for her claim of loss of consortium was not subject to the distribution formula contained in sec. 102.29(1). On appeal, Transport argues that the trial court erred by approving this apportionment scheme because an award for loss of consortium is subject to the distribution formula contained in sec. 102.29(1) and that it misused its discretion by approving the amount of $5,000 for Eldean's claim for loss of consortium. We hold that an award for loss of consortium is not to be considered in the distribution formula of sec. 102.29(1); however, because the trial court has failed to explicate its reasons for approving the settlement, we vacate the order and remand the cause with directions.

August was injured on January 30, 1978, while in the course of his employment with Express Freight Lines, Inc. Claiming that his accident occurred as a result of the defective design of a tachograph unit manufactured by Sangamo Weston, Inc., August commenced a third party products liability action, pursuant to sec. 102.29(1), Stats., against Sangamo. As part of this action, Eldean had a claim for loss of consortium. Transport waived its right to join and participate in the prosecution of the third party action; however, it reserved its right to be reimbursed pursuant to sec. 102.29(1).

The parties negotiated a settlement of the claim for $20,000. The DeMeulenaeres requested the trial court to approve the settlement and the sec. 102.29(1), apportionment. The settlement provided that Eldean would receive $5,000 for her claim for loss of consortium with the remaining $15,000 to be distributed pursuant to the sec. 102.29(1) formula. Transport appeals from the trial court's order approving the apportionment.

Transport argues that the term, "claim," as used in sec. 102.29(1), Stats., encompasses all the various claims of all the parties including a spouse's claim for loss of consortium; and, therefore, any award for loss of consortium is subject to the distribution formula of sec. 102.29(1). We disagree with this contention.

It is a well-recognized principle of statutory construction that:

When the plain meaning of the words in a statute are apparent, a court need not resort to either construction or case law to bolster its recognition of that plain meaning. Where the statutory language is clear, no judicial rule of construction is permitted, and we must arrive at the intent of the legislature by giving the language its ordinary and accepted meaning. [Citations omitted.] Guyette v. West Bend Mutual Insurance Co., 102 Wis. 2d 496, 500-01, 307 N.W.2d 311, 313 (Ct. App. 1981).

From a plain reading of sec. 102.29(1), Stats., we conclude that the term, "claim," encompasses only the claim of the employee, not a spouse's claim for loss of consortium. The language of the statute states that the claim is for "injury or death of an employe." There is no reference to a claim for loss of consortium, nor from a reading of the statute is there any reasonable basis from which it can be inferred.

To support its argument, Transport contends that, because a spouse's claim for loss of consortium is derivative of the employee's claim for injuries, the loss of consortium claim is included in the term, "claim," as used in sec. 102.29(1), Stats. We cannot agree.

Our supreme court, when recognizing the individual right of the spouse to be compensated for loss of consortium in Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 557-58, 150 N.W.2d 137, 144-45 (1967), pointed out that a spouse's claim for loss of consortium was a separate cause of action. See also Schwartz v. City of Milwaukee, 54 Wis. 2d 286, 293, 195 N.W.2d 480, 484 (1972). Regarding this cause of action, the supreme court has stated:

"Consortium involves a broad range of elements such as love, companionship, affection, society, sexual relations, and the right of support or the performance of marital services, any one of which is sufficient to constitute a cause of action." The cause of action for consortium occasioned by an injury to one marriage partner is a separate cause of action belonging to the spouse of the injured marriage partner. A wife's loss of consortium cause of action is derivative "in the sense it arose out of or was occasioned by an injury to her husband." However, loss of consortium is a direct injury to the spouse who has lost the consortium. [Citations omitted.] Peeples v. Sargent, 77 Wis. 2d 612, 643, 253 N.W.2d 459, 471 (1977).

In recognizing that a cause of action for loss of consortium is a separate action which never belonged to the other spouse, the supreme court has held that this cause of action is not subject to the defenses which are available against the other spouse's cause of action. Schwartz, supra. The supreme court has also held that, because a claim for loss of consortium is a personal injury right of action belonging to the spouse, it does not vest in a bankruptcy trustee if a spouse is adjudicated bankrupt prior to trial. Peeples, supra, at 643-44, 253 N.W.2d at 471-72.

Because a spouse's claim for loss of consortium is a separate cause of action which does not belong to the other spouse, we hold that a claim for loss of consortium is not included in the term, "claim," as used in sec. 102.29(1), Stats.; and, ...


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