S.B. 447 May Open the Door to Additional Damages in a Survivor’s Action for Decedent’s Pain and Suffering

August 2, 2021 Published Article

Under longstanding California law, an action brought on behalf of someone who sustains a bodily injury can recover, among other things, pain and suffering damages, but an action brought for a decedent’s (i.e, someone who dies from an injury) survivors cannot.  A bill recently sponsored by the Consumer Attorneys of California (an organization of plaintiffs’ lawyers), Senate Bill 447 (“S.B. 447”), would change this rule and allow a decedent’s personal representative to recover damages for a decedent’s pain, suffering or disfigurement, if the cause of action accrued before January 1, 2026.  The practical effect of this change of law, if it is enacted, would be to substantially increase the amount of damages awarded in survival actions.

Existing Statute

Under the current California legal scheme, when an individual dies from an injury caused by a tortfeasor, the decedent’s successors/heirs can file a survival lawsuit to recover damages that the decedent would have been entitled to up until the point of death. The damages recoverable in a survivor action are limited to actual economic (monetary) losses the victim sustained after the wrongful act but before his or her death. These damages include lost wages, medical bills, as well as any punitive damages. The current statute reads as follows:

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 are limited 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, and do not include damages for pain, suffering, or disfigurement.

(Code Civ. Proc. § 377.34.)

Changes to the Statute

If S.B. 447 were to pass, section 377.34 would instead read as follows:

(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 are limited 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, and do not include damages for pain, suffering, or disfigurement.

(b) 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 if the cause of action accrued before January 1, 2026.

(emphasis added for additions.)

Those in Favor See the Bill as Balancing the Scales of Justice

Proponents of S.B. 447 see it as an opportunity to catch up with most of the rest of the country (the majority of states allow for pain and suffering damages in a survival action) and end perceived injustice when a plaintiff dies before a verdict can be reached. They argue that the current legal scheme operates as an injustice to the innocent injured party and essentially punishes them for succumbing to their injuries as their death extinguishes their loved ones’ ability to recover for the pain and suffering from the time of the wrongful act up to the point of death. Those in support of the bill consider the current law to operate as a “windfall” to the defendant, incentivizing defendants to engage in delay tactics with discovery compliance, availability, and the like, in hopes that a plaintiff will pass away before trial. Those in favor argue that if there are increased costs to defendants, those are simply the costs of engaging in wrongful acts and dispute that the state economy would be impacted by the proposed reform.  In essence, proponents have argued that the bill operates to balance the scales between plaintiffs and defendants and will mainly encourage the efficient use of the court system through discouraging delay tactics.

Those in Opposition See the Bill as Hitting the Public’s Wallet Hardest

Opponents of S.B. 447 argue that because California already allows punitive damages to be recovered in survival actions, allowing pain and suffering damages in survival actions as well would act as essentially double dipping to the benefit of plaintiffs, and their counsel, often working on contingency. Moreover, those in opposition anticipate that the bill, if passed, could result in significantly larger verdicts in California due to the increase in non-economic damages, as well as potentially larger punitive damages verdicts, which are typically calculated as a ratio to the underlying damages verdict. Opponent’s suggest that plaintiff attorneys are pushing for this law to be enacted in order to raise case valuations and settlement demands, by leaning on the fact that non-economic damages are in the province of the jury. Additionally, opponents point out the impact of this change on insurance premiums, which may potentially rise and ultimately dig in deeper into the pockets of individuals, who already have no insurance coverage for punitive damages and will also be subject to higher premiums to account for the potentially substantially larger awards if the additional damages are recoverable.  There could also be a chilling effect in the insurance marketplace, with insurers potentially reacting by being less willing to insure risks in California.

Only time will tell whether S.B. 447 is approved and passed. In the meantime, parties on both sides of the debate continue to lobby for their position and ultimately for their clients, who will feel the effect of S.B. 447 the hardest.