New California Law Expands Damages for Survivors in Wrongful Death Lawsuits

October 7, 2021Article

Legislation signed by California’s Governor Gavin Newsom changes current California law to allow recovery of non-economic damages, such as pain and suffering, after a plaintiff dies.

On Friday, October 1, 2021, California Governor Gavin Newsom signed S.B. 447, a bill that ends the practice of precluding the recovery of a plaintiff’s damages for pain, suffering, or disfigurement if the plaintiff dies before their case has been resolved.

Previously, the California Code of Civil Procedure Section 377.34 limits damages in personal injury actions to economic damages if a plaintiff dies before judgment enters. S.B. 447 changes Section 377.34 which would no longer prohibit non-economic damages if the case was granted a preferential trial date before 2022, or if it was filed between January 1, 2022, and January 1, 2026.

S.B. 447 was introduced by State Senator John Laird (D), a Bay Area native who serves Northern California counties, and was co-sponsored by the Consumer Attorneys of California (“CAOC”) and Consumer Federation of California (“CFC”). The Civil Justice Association of California (“CJAC”), which traditionally represents defendants’ interests, initially opposed the bill, but they withdrew its opposition in exchange for a four-year sunset provision. S.B. 447 was originally permanent when drafted.

Opponents of S.B. 447 have argued that because California already allows punitive damages to be recovered in survival actions, allowing pain and suffering damages in survival actions would result in virtual double-dipping to the benefit of plaintiffs and the plaintiffs’ bar. Bill opponents further argued that S.B. 447 would result in substantially larger verdicts in California, as well as potentially larger punitive damages verdicts, which are generally calculated as a ratio to the underlying damages verdict. Larger compensatory damages awards would support and justify larger punitive damages awards while remaining within the scope of ratios acceptable to trial courts.

Opponents further argued that the plaintiffs’ bar sought passage of S.B. 447 solely to increase case valuations and settlement demands. S.B. 447 may also severely impact insurance premiums to account for the potentially substantially larger awards if additional damages are recoverable. S.B. 447 may therefore impact the insurance industry in California as a whole, potentiallyresulting in insurers becoming less willing to insure risks in California.

California courts are already seen as very favorable to personal injury plaintiffs (and their counsel). Liberal causation and damages standards and anti-corporate jury venires have resulted in heavy case filings and crowded trial dockets. S.B. 447, now C.C.P. 377.34, will likely do nothing to alleviate this trend.