Brian T. Gravdal, Esq.
Prior to the enactment of SB 447, California law prohibited the recovery of damages for a decedent’s pain, suffering, or disfigurement in that action or proceeding. With some limitation, explained further below, that has now changed.
By way of background, before the now revised §377.34 of the California Code of Civil Procedure, California law limited the damages recoverable in a survival action (typically as a component of a concurrent wrongful death lawsuit) to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived. Now, the revised statute reads: “Notwithstanding subdivision (a), in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement.”
Not surprisingly, the bill was sponsored by the Consumer Attorneys of California, an organization of 3,000 plaintiffs’ lawyers (“[o]ur member-attorneys stand for plaintiffs seeking accountability from those who do wrong.”), and it overturns long-established law in California. The motive is clear, i.e., the hope of larger settlements and verdicts.
There is, however, one procedural limitation. It is a limitation on time, not degree or kind. Section 377.34, as now amended, permits damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative or successor in interest if:
(a) the action or proceeding was granted a specified preference under CCP §36 (preferential trial setting) before January 1, 2022; or
(b) the action was filed on or after January 1, 2022 and before January 1, 2026.
The impetus for the bill, as explained in the “Senate Floor Analyses” (September 2, 2021), was as follows: “Foremost, that if a cause of action for such damages does not survive, it results in ‘a windfall for the wrongdoer.’ The author and sponsors emphasize [that] the recovery of a certain remedy should not be foreclosed ‘merely because of the fortuitous intervention of the death of either party.’” Proponents of the bill also stressed that California was in the small minority of states that continued to preclude non-economic damages in survival actions.
Opponents of the bill, including the California Medical Association, argued: “While our physicians work to [protect] their patients from the effects of COVID-19, we know that policy leaders and court officers are diligently planning the return of our courts to their pre-pandemic efficiencies. In SB 447, however, we see an attempt to use the temporary situation of the pandemic to push aside longstanding tenets of California to allow awards of non-economic damages for pain and suffering in survival actions. A policy shift of the magnitude included in SB 447 deserves careful consideration of the collateral damage such a change would bring to all stakeholders of our civil justice system.”
This new law could have a significant impact on businesses, insurance companies and others who will bear the cost of increased jury verdicts in wrongful death cases (with California already notorious for larger and larger verdicts). That being said, it remains to be seen whether this change will survive the self-imposed deadline of January 1, 2026.
The attorneys at Berman, Berman, Berman, Schneider & Lowary LLP will continue to monitor these developments and can address any questions you have regarding the above. They are uniquely qualified to provide additional insight and guidance.
Read the full text of the statute HERE.
Note: Amended §377.34 does apply to medical malpractice actions, but the “MICRA cap” of $250,000 still applies to non-economic damages for pain and suffering damages in a medical malpractice claim.
