Survival actions are brought by the personal representative or successor in interest of the deceased person’s estate and seek the types of damages the deceased victim could have pursued in a personal injury claim if he or she had survived. By contrast, wrongful death claims are brought by the surviving family members of deceased victims to recover compensation for the harms they have suffered because of their loved ones’ deaths. The changes to the law affect the types of damages that are recoverable in survival actions brought by the estate for the benefit of the heirs.
Background of the law
Under Cal. Code Civ. Proc. § 377.20, a victim’s ability to pursue a negligence cause of action for injuries he or she suffers because of the actions of others does not disappear if the victim dies. Historically, estates and families had no legal remedies available when people were killed as a result of the negligent or wrongful acts of others even when the decedent would have been able to recover damages through a personal injury lawsuit if he or she had survived. The California Legislature recognized that this type of outcome was unfair and passed laws allowing the victim’s estate to pursue damages for the losses the victim suffered before succumbing to his or her injuries. A wrongful death statute was also passed to allow certain surviving family members to pursue compensation for the losses they suffered because of the actions of the defendant.
However, the available damages in a survival action were previously limited to the losses the decedent suffered before his or her death and any punitive damages he or she might have recovered if he or she had lived and had pursued a personal injury claim. These limitations are outlined in Cal. Code Civ. Proc. § 377.34, and they do not allow the personal representative or successor in interest to recover damages for the non-economic losses the deceased person suffered before he or she died. This means that estates could not recover damages for any pain and suffering or disfigurement the deceased person suffered between the time of his or her injuries and his or her death. There are only a few states that do not allow estates to recover non-economic damages, and California was among them until Senate Bill 447.
Overview of Senate Bill 447
With it being signed into law, Cal. SB 447 now allows estates to recover non-economic damages that the deceased person suffered before dying under specific circumstances. A plaintiff can pursue non-economic damages in a survival action if the plaintiff was granted a preference for an expedited proceeding before Jan. 1, 2022, under Cal. Code Civ. Proc. § 36. This statute allows a party to petition the court for an expedited trial when the party is older than age 70 and is suffering from health problems. It also allows a petition to be filed for a preference when a party is younger than age 14 in a case involving wrongful death or personal injury. For a case filed after Jan. 1, 2022, the plaintiff can pursue non-economic damages as long as the complaint is filed before Jan. 1, 2026.
The sunset provision in SB 447 means that the exception to the general rule that non-economic damages are not recoverable in survival actions is temporary. The purpose of the law was to address delays caused by COVID-19 that might prevent plaintiffs from recovering damages for their non-economic losses if they die before their civil lawsuits have concluded. However, other proponents have stated that there are other reasons for this change beyond the impact of COVID-19 on the judicial system. It is possible that the legislature could choose to extend the sunset date or make the changes permanent. The legislature might also choose to let the changes expire on Jan. 1, 2026. If the changes are made permanent, they could have a major impact on many cases filed in California.
Potential effect on wrongful death actions
SB 447 might also have an impact on wrongful death lawsuits in California. A deceased victim’s estate, representatives, and heirs might be able to recover damages for the pain and suffering of the deceased victim in addition to their other losses. This could substantially increase potential verdicts returned in favor of the plaintiffs between Jan. 1, 2022, and Jan. 1, 2026.
In many cases involving wrongful death, survival actions are brought by the estate while the victim’s family files a companion wrongful death lawsuit. Family members can recover damages for the losses they have suffered because of the loss of their loved one, and the estate can pursue damages for the losses the victim could have pursued if he or she had lived. Damages recovered through survival actions are paid into the estate and passed on to the heirs. In wrongful death claims, the surviving family members that prevail are directly compensated for their own losses. By allowing the plaintiffs the ability to recover damages for the victim’s non-economic losses, the total awards could be increased substantially.
Over the next four years, verdicts in cases involving wrongful death will likely be substantially larger than in the past. If insurance companies are forced to pay greater amounts in claims, some might try to pass on some of the added costs to their insureds by increasing their premiums. However, the families and estates of people who are killed because of the wrongful or negligent actions of others might be able to recover full compensation for all of the losses caused by the actions of the defendants so that they can be made whole.
While opponents of the law argue that California is already perceived as anti-business and that this law will make those views even more entrenched, the fact that most other states already allow plaintiffs to recover damages for the non-economic losses the deceased victims suffered before their deaths belie this argument. Before this change, California was one of only a few states that prohibited the recovery of the non-economic damages suffered by the decedents before their deaths. This change means that California is now joining the ranks of the majority of states that already allow the surviving family members or estates to recover these types of damages.
It is unclear whether these changes will be allowed to expire, be extended, or be made permanent. If they are made permanent, the surviving family members and estates of people who are killed will have the opportunity to fully recover all of the losses that both they and the victims have suffered because of the actions of the defendants. In that sense, the surviving family members and heirs of a deceased negligence victim might be better able to hold a defendant fully accountable for his or her actions while recovering the compensation to which they should be entitled.
Talk to an experienced tort attorney
If your loved one was killed because of the wrongful or negligent actions of another person or entity, you should speak with an experienced tort lawyer at the Steven M. Sweat, Personal Injury Lawyers, APC. We can help to explain how this law might impact you and your ability to recover full compensation for the losses that both you and your loved one have suffered. Contact us today for a free consultation by calling 866.966.5240.