Wisconsin Supreme Court allows wrongful death claim.

Byline: Wisconsin Law Journal Staff

A man may bring a wrongful death action on behalf of a stillborn, and then move to establish paternity, the Wisconsin Supreme Court held Mar. 9. However, he may not bring a paternity action, and then file a wrongful death action. C.A.V.M. was stillborn as a result of a motor vehicle accident involving her mother, Alicia. Alicia is legally incompetent as a result of the accident. Shannon E.T. initiated a wrongful death action against Alicia and the other driver, alleging that he was the father of C.A.V.M. Wood County Circuit Court Judge Edward F. Zappen, Jr., held that the action could not proceed without a determination that Shannon was the father, and stayed the case. Shannon then commenced a paternity action. Alicia's guardians moved to dismiss, arguing that sec. 767.45(1) does not permit a man to claim paternity of a stillborn. Monroe County Circuit Court Judge Michael J. McAlpine granted the motion. The court of appeals affirmed in a published opinion, Shannon E.T. v. Alicia M.V.M., 2006 WI App 104, 718 N.W.2d 729. The Supreme Court affirmed, in a decision by Justice N. Patrick Crooks. However, the court held that Shannon could bring a motion under sec. 885.23 to determine his paternity in the pending wrongful death action, an issue the court of appeals did not consider. Justice David T. Prosser Jr. dissented, concluding that the paternity action could proceed. Paternity The court first held that Shannon could not commence a paternity action, because the statute refers to "the child," and a stillborn does not qualify as a "child." The paternity statutes provide detailed procedures. Under sec. 767.50(1), a paternity trial must consist of two parts: first, the determination of paternity; and second, child support, legal custody, periods of physical placement, and related issues. From this structure, the court of appeals concluded, and the Supreme Court affirmed, that the Legislature did not intend for a man to be able to bring a paternity action solely for the purpose of bringing another action, such as a wrongful death claim. Wrongful Death However, the court concluded that a man may commence a wrongful death action, then move for a determination of paternity in that action. Section 885.23 provides that, whenever it is relevant in a civil action to determine the parentage or identity of a "child, person or corpse," the court shall direct genetic tests. In addition, longstanding law provides for a...