Additional Damages Will Now Be Allowed in Wrongful Death Cases

Last month, Governor Gavin Newsom signed Senate Bill 447 (“SB 447”) into law, and in so doing, amended California Code of Civil Procedure 377.34, expanding the scope of recoverable damages to include those relating to a decedent’s pain, suffering, or disfigurement when brought as part of a survival action.

This new legislation, originally proposed by Senator John Laird, takes effect in January 2022. Under the current state of the law, if a person dies from the wrongful conduct of a tortfeasor, whether before or during litigation, the heirs or successors of the decedent can bring a survival lawsuit. This type of action allows for recovery of damages the decedent would have been entitled to until the point of death, because the cause of action passes from the decedent to their heirs or successors. Current California law only allows for economic damages (and punitive damages where warranted) and does not allow for recovery of pain, suffering, or disfigurement in these cases.

SB 447 changes that, and will allow for recovery of pain, suffering, or disfigurement – but only where the action or proceeding was granted a preferential trial date before January 1, 2022, or where it was filed on or after January 1, 2022, and before January 1, 2026.

Additionally, SB 447 opens the door to large increases in jury verdicts, and in turn, may also cause an increase in settlement demands and case valuation. Many feel that there are already other mechanisms in place for a decedent’s successor in interest to recover non-economic damages. For instance, California allows for recovery of punitive damages. Under SB 447, a plaintiff could reasonably recover for pain, suffering, or disfigurement while also being awarded a substantially higher punitive damages award.

A seemingly reasonable prediction is SB 447’s impact on the insurance industry whether by increasing premiums or forcing companies to be less willing to insure risks in California due to the potentially large award amounts granted by SB 447.

However, SB 447 does seem to have at least one limitation. Plaintiffs who recover under SB 447 must report back to the Judicial Council. On or before January 1, 2025, the Judicial Council, after collecting this data, is required to submit a report back the Legislature. This would seem to allow the Legislature to review the data after a four-year time period and decide whether SB 447 can remain as is, or possibly further amend it at that time.