Damages in wrongful death cases is intended to compensate for losses resulting from the death of a family member. Some losses are measurable - a widow in a wrongful death suit, for example, could seek to recover the financial support that she would have received had her spouse lived. Other damages are more general in nature. Types of recoverable damages include:
Wisconsin law provides that you may recover damages to the extent of damages actually sustained, excluding exemplary or punitive damages, or damages for alleged outrage to the feelings of the injured party. Wis. Stat. § 895.02. Punitive damages are not recoverable for wrongful death. Wangen v. Ford Motor Co. 97 Wis. 2d 260, 294 N.W.2d 437 (1980)
Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparitive fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to put a price tag on the emotional loss you suffered from the decedent death.
An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she lived. Therefore, it is common to take the victim's earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.
Example: Suppose a spouse, 25 years of age, was earning $20,000 a year at the time of his death. Since he was not expected to retire or die for another 40 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($20,000 X 40 years). In this instance, his future loss is $800,000.
The example above is a simple explanation of how future loss calculations are made. Most of the time, however, the calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. So instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live.
When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.
Example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.
In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then adjusted discounted using a mathematical table. The mathematical table estimates today's value of one dollar in the future based on the number of years the decedent was expected to live and an annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent's yearly salary. The purpose for using present value is that a successful plaintiff will receive a sum that if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested.
In wrongful death suits, more than one family member may be a beneficiary to an award amount. So how are damages distributed? Under Wisconsin law, the amount recovered is distributed according to intestate succession — that is, if the decedent leaves behind a spouse with no minor children, all the recovery goes to the spouse. If there is no spouse, the recovery goes to the lineal descendants. If there are none, the recovery goes to siblings. Wis. Stat. § 895.04(2). If the party is the decedent's estate, the total amount becomes an asset of the estate. Wis. Stat. § 895.04(6).