This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Cynthia Montpetit, individually and as Trustee

for the heirs and next of kin of

Arthur D. Montpetit, deceased,



Arthur L. Montpetit, et al.,





Allina Health System, Inc.,

d/b/a United Hospital, et al.,




Filed October 10, 2000


Huspeni, Judge*


Ramsey County District Court

File No. C9982036


Daniel J. Boivin, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for respondent)


Matthew A. Biegert, Doar, Drill & Skow, S.C., P. O. Box 69, New Richmond, WI 54017 (for appellants)


Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


After a mediated settlement in a wrongful-death action, the district court granted the motion of respondent Cynthia Montpetit, decedent’s widow, to distribute net settlement proceeds, concluding that (1) Wisconsin law governed the class of beneficiaries entitled to receive the settlement proceeds, (2) a May 4, 1999 distribution agreement between Cynthia and other family members lacked consideration, (3) an earlier April 28 distribution agreement was not binding on the court, and (4) the net settlement proceeds were to be distributed solely to Cynthia in accordance with Wisconsin law and without regard to the May 4 or April 28 agreements.  Because the district court properly applied Wisconsin law, and did not err in its decisions regarding the parties’ purported agreements, we affirm.


Arthur Montpetit, a lifelong resident of Somerset, Wisconsin, died while undergoing heart surgery in St. Paul.  He was survived by his spouse Cynthia, his two adult children Angel and Archie (collectively, “the immediate family”), his parents Arthur Sr., and Pricilla, and his five adult siblings John, Jacque, Sandy, Geri, and Deb (collectively, “the extended family”).[1]  Except for Geri, all surviving family members are residents of Wisconsin.

When Arthur died, Arthur Sr. encouraged Cynthia to consult an attorney about the possibility of bringing a wrongful-death action for her benefit and the benefit of her children.  She consulted with Wisconsin attorney Keith Rodli; Rodli consulted with Minnesota attorney David Oskie, who advised Rodli that under Minnesota law all family members would be in a position to make a claim.  The family met and agreed that Cynthia should seek appointment as trustee to pursue the action.  The district court appointed Cynthia as trustee and the case was initiated.

At the suggestion of defendants,[2] the parties agreed to attempt mediation, and set a date of May 5.  Because Rodli wished to present the strongest bargaining position and maximize the chance of settlement, he sought agreement among family members before mediation on (1) who would attend the mediation and have the authority to accept proposed settlement offers and (2) how to distribute any settlement proceeds.  On April 28, the family members met and agreed to divide the proceeds 30 percent to Cynthia, 30 percent to each of the two adult children of decedent and Cynthia, and 10 percent to decedent’s parents (30/30/30/10).  The remainder of the extended family declined to assert any claim to the potential recovery for themselves.  The family members also agreed that the immediate family (Cynthia and her children) would attend the mediation with settlement authority.  The next day, Rodli memorialized his understanding of the agreement and sent it to the family members.

Beginning April 30, the extended family expressed their concern that the agreement was not fair; they proposed, instead, that settlement proceeds be divided equally among Cynthia, each of her two adult children, and decedent’s parents (25/25/25/25).  The siblings and Cynthia argued about the distribution arrangement during the next week.  On May 4, Sandy and John advised Rodli that the April 28 agreement was not acceptable and that they thought a member of the extended family should be allowed to attend the mediation.  Until about 10:00 p.m. on May 4, Rodli had numerous discussions with family members, attempting to reach an agreement.  He told family members he would not proceed with the mediation if they did not agree on how proceeds would be distributed.  The extended family made clear that they would not accept the April 28 agreement.

When speaking with Rodli about her options, Cynthia, in distress, said, “Why don’t I just put a gun to my head.”  The night of May 4, after all calls from the extended family, Cynthia told Angel to do whatever she wanted to do, and that she (Cynthia) had had it.  Cynthia testified that despite her conversation with Angel, she (Cynthia) wasn’t going to agree.  Angel notified Rodli that the immediate family would agree to the proposed 25 percent equal distribution.

The immediate family attended the mediation and settled the claim.  Costs and attorney fees were distributed; net settlement proceeds were put into trust.  Due to the disagreement among family members, Rodli withdrew from representation.  Upon Cynthia’s motion to distribute the net proceeds and after a hearing in which Rodli, Cynthia, John, Sandy, and Angel testified, the court applied Wisconsin law and distributed the entire proceeds to Cynthia.  This appeal followed.



I.          Choice of Law

Minnesota’s wrongful death statute provides that settlement proceeds “shall be for the exclusive benefit of the surviving spouse and next of kin.”  Minn. Stat. § 573.02, subd. 1 (1998) (emphasis added).  “Next of kin” means blood relatives who are members of the class from which beneficiaries are chosen under the intestacy statute, and includes non-dependent relatives, such as the parents of a child beyond majority who has married, and siblings.  Wynkoop v. Carpenter, 574 N.W.2d 422, 427 (Minn. 1998); Martz v. Revier, 284 Minn. 166, 173, 170 N.W.2d 83, 87 (1969); Moore v. Palen, 228 Minn. 148, 154, 36 N.W.2d 540, 543 (1949).  In contrast, Wisconsin’s statute provides that where, as here, there are no surviving minor children, “the amount recovered shall belong and be paid to the spouse of the deceased.”  Wis. Stat. Ann. § 895.04(2) (Supp. 1999) (emphasis added).

The parties do not contest that a choice-of-law analysis was appropriate or that either state’s law could be constitutionally applied.  See Nodak Mut. Ins. Co. v. American Family Mut. Ins. Co., 604 N.W.2d 91, 93-94 (Minn. 2000) (stating choice-of-law analysis necessary when conflict between states’ laws is outcome determinative); Jepson v. General Cas. Co., 513 N.W.2d 467, 469 (Minn. 1994) (addressing as threshold question whether law of both states can be constitutionally applied).  The extended family, however, contends that the district court erred as a matter of law in its application of the requisite choice-influencing factors.  We review questions of law de novo.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

The relevant factors in a choice-of-law analysis are:

(1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interest; and (5) application of the better rule of law.


Jepson, 513 N.W.2d at 470; see Nodak, 604 N.W.2d at 94; see also Milkovich v. Saari, 295 Minn. 155, 161, 203 N.W.2d 408, 412 (1973) (abandoning lex loci doctrine as choice-of-law rule and adopting view set out by Robert A. Leflar in Choice-Influencing Factors in Conflicts Law, 41 N.Y.U. L. Rev. 267, 282-83 (1966)).  The district court determined that

The first three Milkovich factors are not relevant in a tort action.  The fifth Milkovich factor is to be exercised only when other choice-influencing considerations leave the choice of law uncertain, and has been abandoned in recent years.  Only the fourth Milkovich factor, the advancement of the forum’s governmental interests, needs to be considered here.


(Citations omitted.)

The extended family argues that the first factor, predictability of result, applies as well as the forum’s governmental interest, and that consideration of these two factors compels the application of Minnesota law.  We cannot agree.

On the first factor, predictability, the extended family argues that the act causing injury arose out of a consensual transaction in which Arthur agreed to have heart surgery; therefore, the parties should have anticipated Minnesota law would apply.  See Milkovich, 295 Minn. at 161, 203 N.W.2d at 412 (noting predictability factor best applies in consensual transactions, not cases involving accidents).  We conclude that this argument is without merit.  While Arthur may have consented to surgery, we cannot assume that the parties contemplated his death or that they balanced the relative merits and demerits of the wrongful-death statutes of Minnesota and Wisconsin when agreeing to treatment in Minnesota.  See Nodak, 604 N.W.2d at 94 (predictability preserves justified contractual expectations and certainty regarding law governing future contract-based disputes); Jepson, 513 N.W.2d at 470 (tort actions generally do not implicate predictability factor as torts stem from unplanned acts).  The district court did not err in discounting this factor in its analysis.

Next, the extended family argues that the governmental interest of the forum state, Minnesota, would be most advanced by applying its own law because Minnesota rejects the policy that only surviving spouses should recover in wrongful-death actions.  The extended family argues that if Wisconsin law is applied, decedent’s parents will go uncompensated.  While we are not insensitive to the tragedy suffered by the entire family in the loss of one of its members, and while we are mindful of the added strife the family has endured as a result of disagreements giving rise to the issues now before us, we see no error in the district court’s conclusion that Minnesota’s governmental interest under these circumstances would be most advanced by applying Wisconsin law.  Minnesota’s interest in allowing recovery for persons injured within its boundaries has been satisfied by providing these Wisconsin residents a forum for recovery.  It is Wisconsin that has the predominate governmental interest in distribution of the recovery because the parties who claim entitlement as beneficiaries are all domiciled in Wisconsin.

The extended family argues, further, that damages recovered in a wrongful-death action should be distributed in accordance with the law of the state in which the cause of action arose.  22A Am. Jur. 2d Conflict of Laws § 382, 414 (1988) (footnotes omitted).  We disagree with the argument the extended family presents on this issue.  There is ample authority from other jurisdictions, authority we find persuasive here, allowing courts in wrongful-death actions to apply one state’s law to determine whether recovery may be available and another state’s law to accomplish distribution of any damages or settlement.  See, e.g., Soares v. McClosky, 466 F. Supp. 703, 709 (E.D. Pa. 1979) (applying Rhode Island law to distribution of proceeds in Pennsylvania wrongful-death action because survivors resided in Rhode Island); Shenandoah v. City of Philadelphia, 438 F. Supp. 981, 989 (E.D. Pa. 1976) (noting, after Pennsylvania law allowed recovery, that domicile “alone” sufficient to apply New York law for distribution when decedent and all but one beneficiary resided in New York); Satchwill v. Vollrath Co., 293 F. Supp. 533, 534-35 (E.D. Wis. 1968) (stating “[i]t is of relatively less concern to Wisconsin how any potential recovery is distributed” when beneficiaries resided in Ohio); Fabricus v. Horgen, 257 Iowa 268, 278, 132 N.W.2d 410, 416 (Iowa 1965) (applying Minnesota negligence law because Minnesota was where accident occurred but distributing recovery under Iowa law because all parties domiciled there); In re Estate of Layden, 92 Misc. 2d 353, 356 (N.Y. Surr. 1977) (applying Florida law to distribution of proceeds in wrongful-death action brought under New York law because decedent’s family lived in Florida); In re Estate of Caccamo, 71 Misc. 2d 391, 392-94 (N.Y. Surr. 1972) (applying New York law to recovery aspects and Nevada law to distribution aspects of wrongful-death suit because Nevada had predominant governmental interest as decedent’s widow and infant child resided there).

The Restatement also supports our conclusion:

In a situation where one state is the state of domicile of the decedent and the beneficiaries, * * * it would seem that, ordinarily at least, the wrongful death statute of this state should be applied to determine how the recovery in a wrongful death action should be distributed.


Restatement (Second) of Conflict of Laws § 177 cmt. b (1971).

Therefore, we see no error in the decision of the district court, in a wrongful-death action brought in Minnesota, to apply Wisconsin law to determine how net settlement proceeds should be distributed. 

II.        The April 28 and May 4 Agreements

The extended family argues that the district court erred in disregarding two “agreements” under which family members structured distribution of the net settlement proceeds.  We note initially our determination that the district court properly applied Wisconsin law to the distribution of settlement proceeds, and that the Wisconsin statute as applied in this case only allows for one beneficiary, the surviving spouse Cynthia.  Wis. Stat. Ann. § 895.04(2) (stating recovery “shall” belong and be paid to surviving spouse when no surviving minor children).  Decedent’s parents are not entitled to distribution under the Wisconsin law, because decedent’s spouse Cynthia survived him.  See Wis. Stat. Ann. § 895.04(2) (next of kin allowed to share in recovery only when decedent leaves no surviving spouse or minor children).  Thus, arguably, once having determined that Wisconsin law would apply, the district court could distribute proceeds only to Cynthia.  See Chang v. State Farm Mut. Auto. Ins. Co., 514 N.W.2d 399, 403 (Wis. 1994) (“right to recover damages for wrongful death and the terms of the recovery are confined to what is specified in the statute”).

Even if we assume that the parties, through their April 28 and May 4 “agreements,” had the right to disregard and “draft around” the Wisconsin statute, we find no error in the district court’s resolution of the questions raised regarding those “agreements.”  The district court found:

18.       At the April meeting, an agreement was reached by all family members present.  The agreement (“the April 28 90/10 Agreement”) was that Cindy and the Children alone would attend the mediation and make all decisions regarding settlement, and that Cindy and each of the Children would each receive 30 percent, and the Parents jointly would receive the remaining 10 percent * * * .


* * * *


27.       Finally, on May 4, 1999, without authority from Cindy, Angel telephoned attorney Rodli and advised him that Cindy and the Children would agree to the proposed 75/25 distribution on the understanding that only Cindy and the Children would attend the mediation with authority to decide on settlement. 


28.       * * * Cindy attended the mediation on the basis of the April 28 90/10 agreement.


From these findings, the district court concluded that:


The Parents and Siblings were already obligated under the April 28 90/10 agreement * * * .  The Siblings refused to perform the April 28 90/10 agreement and coerced a promise from Angel * * * . Angel’s promise was not binding as lacking further consideration * * * .


The district court recognized that the parties had reached an agreement on April 28; the court rejected the May 4 “agreement” both because it lacked additional consideration and because coercion was involved.  While we can see no error in the district court’s categorization of either “agreement,” we recognize, as did the trial court, that under Bond v. Roos, 358 N.W.2d 654 (Minn. 1984), a court is not bound by a stipulation providing for ultimate distribution of the proceeds of a wrongful-death action or settlement to the next of kin.  Id. at 657.  Thus, the district court did not err in rejecting the April 28 agreement; nor did it err in declaring that the proceeds should be distributed in accordance with Wisconsin law.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  In their appellate briefs, both parties refer to the decedent’s mother as Pat or Patricia.  We use the names of the parties as they appear on the Feb. 27, 1998, consent form used to appoint Cynthia as trustee.

[2]  Allina Health System, Inc., d/b/a United Hospital, et al.