Meracle v. Children's Service Soc. of Wisconsin

• Decision Date: 04 April 1989
• Docket Number: No. 87-0457,87-0457
• Citation: 437 N.W.2d 532,149 Wis.2d 19
• Parties: , 57 USLW 2627 Quentin MERACLE and Nancy Meracle, Plaintiffs-Appellants, v. CHILDREN'S SERVICE SOCIETY OF WISCONSIN, a Wisconsin corporation; and American Home Assurance Co., a foreign corporation, Defendants-Respondents-Petitioners, St. Paul Fire & Marine Ins. Co., a foreign corporation, Defendant.
• Court: Wisconsin Supreme Court

Page 532

437 N.W.2d 532

149 Wis.2d 19, 57 USLW 2627

Quentin MERACLE and Nancy Meracle, Plaintiffs-Appellants, v. CHILDREN'S SERVICE SOCIETY OF WISCONSIN, a Wisconsin corporation; and American Home Assurance Co., a foreign corporation Defendants-Respondents-Petitioners St. Paul Fire & Marine Ins. Co., a foreign corporation, Defendant.

No. 87-0457.

Supreme Court of Wisconsin.

Argued Jan. 30, 1989.

Decided April 4, 1989.

Stephen P. Juech, argued, Mary S. Ogorchock, and Frisch, Dudek and Slattery, Ltd., on briefs, Milwaukee, for defendants-respondents-petitioners.

Howard A. Davis, argued, Charles F. Stierman, Virginia M. Antoine, and Habush, Habush & Davis, S.C., on brief, Milwaukee, for plaintiffs-appellants.

CALLOW, Justice.

This is a review of a decision of the court of appeals, Meracle v. Children's Service Society of Wisconsin, 143 Wis.2d 476, 421 N.W.2d 856 (1988), reversing a judgment of the Milwaukee County Circuit Court, Judge Ralph Adam Fine, granting summary judgment in a wrongful adoption action to Children's Service Society of Wisconsin and American Home Assurance Company. The court of appeals decision also reversed the circuit court's denial of the motion of Quentin and Nancy Meracle for reconsideration of the judgment.

We address two issues in this case. First, is the cause of action of Quentin and Nancy Meracle (the Meracles) barred by the statute of limitations? Second, is the Meracles' cause of action barred by public policy? We conclude that the Meracles' claim for future, extraordinary medical expenses is not barred by either the statute of limitations or by public policy. We also hold, however, that the Meracles' claim for emotional distress must be dismissed because the alleged emotional distress was not manifested by physical injury.

In 1977, the Meracles contacted Children's Service Society of Wisconsin (CSS), an adoption agency, about adopting a child. They told CSS they wanted a "normal, healthy child," which they defined as a child without a "disabilitating" or terminal disease, who is not deformed and who is of average or above average intelligence.

On October 10, 1979, the Meracles met with Josephine Braden (Braden), a social worker at CSS, to discuss the foster placement and adoption of Erin, a twenty-three month-old child. According to the Meracles' deposition testimony, Braden told them the following at the meeting: that Erin's paternal grandmother had died of Huntington's Disease; that Huntington's was a degenerative brain disease which is genetically transmitted between generations; that if one generation was free of the disease, the next generation would be free of it; that each child of a Huntington's Disease victim had a fifty-fifty chance of developing the disease; and that the disease was always fatal. According to the Meracles, Braden also told them that Erin's father had tested negative for the disease and that, therefore, Erin had no more chance of developing the disease than did any other child.

In her deposition, Braden recalled discussing Huntington's Disease with the Meracles at this meeting. However, she did not recall telling the Meracles there was no chance of Erin developing the disease, and could not believe she had done so.

On October 18, 1979, CSS placed Erin with the Meracles, and on November 12, 1980, the adoption was completed.

On February 8, 1981, Nancy Meracle saw a segment of the television program 60 Minutes which dealt with Huntington's Disease. The show stated that a child of a Huntington's Disease victim has a fifty percent chance of developing the disease. It also stated that there was no reliable test for someone at risk to determine whether he or she had inherited the disease.

"Alarmed" and "frightened," Nancy told her husband about the program. The Meracles obtained a pamphlet about Huntington's Disease from a library the next day which confirmed there was no test for the disease. They took no further action at this time.

On September 27, 1984, a neurologist diagnosed Erin as having Huntington's Disease. On September 25, 1985, the Meracles filed a complaint against CSS in the Milwaukee County Circuit Court. They subsequently amended the complaint twice to include two insurance companies as co-defendants: American Home Assurance Company (American Home) and St. Paul Fire & Marine Insurance Company.

The second amended complaint contained two claims for relief. First, the Meracles contended that CSS negligently placed Erin with them. Second, they contended that CSS negligently misrepresented to them that Erin's father was free of Huntington's Disease. ¹ The Meracles demanded judgment of ten million dollars for each of the claims. They sought to recover damages for loss of society and companionship of Erin, emotional pain and suffering, interference with their enjoyment of life, lost wages and medical expenses. ²

On September 8, 1986, CSS and American Home moved for summary judgment contending that the complaint was barred both by public policy and by the three-year statute of limitations. The Milwaukee County Circuit Court, Judge Ralph Adam Fine, on February 10, 1987, granted the motion for summary judgment holding that the claim was not brought within the three-year statute of limitations. In its memorandum decision the circuit court noted that a cause of action accrues when there is discovered negligence and a resulting known injury. It held that the cause of action in this case accrued in 1981 when the Meracles first discovered CSS's negligence. It concluded that the Meracles in 1981 had suffered both emotional distress and quantifiable pecuniary damages since probable medical expenses could be calculated at that time. On March 16, 1987, the circuit court issued an order denying the Meracles' motion for reconsideration.

The Meracles appealed from both the judgment and order on March 17, 1987. The court of appeals reversed. It held that the Meracles' complaint is actually composed of two separate claims. The first claim is for emotional distress based upon the Meracles' fear that Erin might contract Huntington's Disease. Meracle, 143 Wis.2d at 481, 421 N.W.2d 856. The second claim is for future medical expenses and emotional distress the Meracles suffered by adopting a child who had actually developed the disease. Id. The court found that the first claim accrued in 1981 and thus was barred by the statute of limitations. Id. at 482, 421 N.W.2d 856. However, it held that the second claim did not accrue until Erin was diagnosed as having the disease in September of 1984. Id. at 483, 421 N.W.2d 856. It held that this claim was not time-barred and that it did not violate public policy. Id. at 483-84, 421 N.W.2d 856.

We first turn to CSS's contention that the Meracles' claim is barred by the three-year statute of limitations for negligence. CSS notes that Borello v. U.S. Oil Co., 130 Wis.2d 397, 411, 388 N.W.2d 140 (1986), set forth the following rule for when a cause of action accrues:

[U]nder Wisconsin law, a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of injury but also that the injury was probably caused by the defendant's conduct or product.

It insists that the Meracles' cause of action accrued in 1981 when the Meracles first learned of the negligent misrepresentation.

We find that in 1981, while the Meracles had learned of CSS's negligence, they had suffered no injury which would support a cause of action. As this court held in Barry v. Minahan, 127 Wis. 570, 573, 107 N.W. 488 (1906), "[a] cause of action accrues where there exists a claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it." We defined "cause of action" similarly in Holifield v. Setco Industries, Inc., 42 Wis.2d 750, 754, 168 N.W.2d 177 (1969), stating, "a person has a 'cause of action' when he can come into court, plead and prove certain facts and secure the relief requested." In 1981, the Meracles did not have a claim which they could have enforced in court either for pecuniary damages or for emotional distress.

We first consider the Meracles' ability to recover pecuniary damages. CSS contends that the Meracles could have stated a claim for the $1000 adoption fee and for the cost of raising Erin between the time of her adoption and the discovery of the disease in 1981. This is incorrect. These are costs which would have been incurred in any case during the adoption of a child. The Meracles wanted to adopt a child. These were ordinary expenses pursuant to that end. It is only the extraordinary expenses, the unexpected expenses resulting from Erin's special needs, which are actionable.

CSS also contends that the Meracles could have stated a claim for Erin's future medical expenses in 1981. This also is incorrect. In order to sue for future medical expenses in 1981, while Erin had not yet contracted the disease, the Meracles would have had to base their claim on the mere possibility that Erin would develop the disease. To recover for future expenses due to an injury, a plaintiff must demonstrate that the anticipated expenses are reasonably certain to occur. "[R]ecovery may be had for reasonably certain injurious consequences of the tortfeasor's negligent conduct, not for merely possible injurious consequences." Brantner v. Jenson, 121 Wis.2d 658, 663-64, 360 N.W.2d 529 (1985) (emphasis added).

This standard applies to the recovery of future medical expenses. In Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 776, 233 N.W.2d 372 (1975) (emphasis added), we held that the parents of a deformed child could recover in a wrongful birth action those expenses which they "will to a reasonable medical certainty suffer in the future" in providing medical attention for the child. Similarly, in Bleyer v. Gross, 19 Wis.2d 305, 312, 120 N.W.2d 156 (1963), we allowed a husband to...