Keenan Briefings

Briefing

SB 447 Expands Non-Economic Damages for Deceased Plaintiffs

• SB 447 will change California tort law to allow courts to award damages for a deceased person’s non-economic damages in certain cases.
• Prior to SB 447, California was one of only a handful of states that do not allow this type of non-economic damages in a survival action.
• A report prepared by the Senate Judiciary Committee suggests that SB 447 represents rather a temporary exception to the general rule in order to address the delays in judicial proceedings caused by COVID-19.

On October 1, 2021, Governor Gavin Newsom signed into law SB 447 (Chapter 44, Statutes of 2021) which will change California tort law to allow courts to award damages for a deceased person’s non-economic damages of pain, suffering, or disfigurement to the deceased person’s personal representative or successor in interest in certain cases. While many states allow this type of damages award, the law has the potential to raise the cost to public entities of personal injury cases in situations where the plaintiff has died.

Background

Section 377.20 of the Code of Civil Procedure is California’s survival statute. It provides that a cause of action for or against a person is not lost by reason of the person’s death. Section 377.34 of the Code of Civil Procedure limits the damages that can be recovered in these survival actions or proceedings, brought by a decedent’s personal representative or successor in interest on the decedent’s cause of action. The damages recoverable in such actions are 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. However, Section 377.34 specifically excludes any damages for pain, suffering, or disfigurement. California is one of only a handful of states that do not allow this type of non-economic damages in a survival action.

SB 447

This statute allows the recovery of such damages, under the following circumstances:

• Prior to January 1, 2022, the plaintiff was granted a “preference” pursuant to California Code of Civil Procedure § 36. Section 36 allows a party to a civil action to petition the court for an expedited trial in the case where a party is either over 70 years of age and in poor health, or under the age of 14 in the case of wrongful death or personal injury action.
• The cause of action was filed before January 1, 2026.

Analysis

A report prepared by the Senate Judiciary Committee suggests that SB 447 represents rather a temporary exception to the general rule in order to address the delays in judicial proceedings caused by COVID-19. The bill’s proponents would argue that, but for these delays, the plaintiff would have survived to collect pain and suffering damages. However, many of the law’s proponents argued for the necessity of this change in ways apart from recent delays. It remains to be seen if the legislature will decide whether to the make the change permanent, allow the change to expire, or extend the date in order to allow more consideration. Especially if made permanent, this change has the potential to impact a wide variety of cases. According to the Assembly Appropriations Committee, SB 447 could cost state agencies, including Cal Fire and Caltrans, hundreds of thousands, if not millions, of dollars.

Moreover, the legislation may have an impact on wrongful death actions in California, allowing a decedent’s estate, heirs, and representatives to recover for not only for their own pain and suffering because of their loss but also the pain and suffering of the decedent, thereby increasing the potential verdict in any wrongful death case brought between January 1, 2022 and January 1, 2026.

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