When someone in California is killed due to the negligence, recklessness or intentional wrongful act of another person, there are two causes of action that arise:

  1. A wrongful death lawsuit to compensate the survivors for their own economic and non-economic losses; and/or
  2. A survival action to compensate the estate for losses suffered by the decedent prior to their death.

Determining whether to bring only one cause of action or both at the same time has traditionally centered around the damages that are allowed in each.

Previously, California was one of five states that didn’t allow the recovery of damages for the decedent’s pre-death pain, suffering and disfigurement in survival actions. That all changed on October 1, 2021 when Senate Bill Number 447 (“SB 477) was signed by Governor Newsom, expanding the damages that can be awarded in a survival action brought by the decedent’s personal representative or successor in interest. The bill, now codified (as amended) in California Code of Civil Procedure (“CCP”) Section 377.34, permits non-economic damages for the pain, suffering or disfigurement that the decedent experienced before their death as long as the action was filed after January 1, 2022, or it was granted special preference before that date.

Anyone with a possible survival action should pay close attention to how this may impact their total compensation. This new law is applicable only to survival actions that are brought on behalf of the decedent, and has no effect on wrongful death actions brought by surviving family members for their own losses. (See this page for a detailed discussion of the difference between wrongful death and survival actions.) However, with the expansion of CCP § 377.34, it is likely more survival actions will be brought in tandem with wrongful death claims as there is now a much bigger incentive to bring both claims together.

A Brief History of SB 447

The bill was introduced by State Senator John Laird, a native of the San Francisco Bay area, on February 16, 2021, and had support from both the Consumer Attorneys of California (CAOC) and Consumer Federation of California (CFC). Proponents of the bill believed that CCP § 377.34, as written, encouraged defendants to delay trials in the hopes the injured plaintiff would die, which would extinguish any right to non-economic damages that had the potential to be very high. This created an inherently unjust “windfall” to the defendant when the injured party did not survive until settlement or trial. Delay tactics included discovery compliance and general availability, which in turn burdened the courts unnecessarily. Proponents of the bill saw it as an opportunity to end this injustice and catch up with the rest of the country.

What’s Next for CCP § 377.34?

Although the amended law only applies to a small number of legal cases, it will certainly change the way survival actions are litigated moving forward. Overall, the total value of the average California survival action claim could grow significantly. Under the revised law, a decedent’s heirs, estate, and representatives will now be able to recover compensation for the pain and suffering of the decedent in the period before their death, in addition to any economic damages.

The new law doesn’t change the existing economic damages that remain recoverable in survival actions including lost wages, medical bills, and potentially punitive damages. It simply allows the recovery of non-economic damages, as well. The new law has no bearing on wrongful death actions, and a decedent’s next of kin can (through a wrongful death claim) recover non-economic damages for the loss of love, companionship, comfort, care, assistance, protection, affection, society and moral support provided by their loved one.

CCP § 377.34 Reporting Requirements & Sunset Date

Built into the new law is a reporting requirement, and plaintiffs must provide the Judicial Council with “a copy of the judgement, consent judgement, or court-approved settlement agreement, along with . . . the amount and type of damages awarded, including economic damages and damages for pain, suffering or disfigurement.” To ensure the law is operating as intended, and to monitor the effectiveness of the amendment as a whole, the Judicial Council must submit a report to the state legislature by January 1, 2025 detailing all judgments or settlement reached between January 1, 2022 and July 31, 2024. In addition to the reporting requirement, the new law included a “sunset date” of January 1, 2026. This means CCP § 377.74, as amended, will expire on January 1, 2026 unless another bill is passed to extend that date or remove it altogether.

Conscious Pain and Suffering

As cases are filed and litigated under the new law, case law will begin to shape the legal landscape around CCP § 377.74 and we’ll start to see the impact the new law is having. In particular, pay careful attention to how “pre-death pain and suffering” is defined by the courts. Does the decedent need to survive for a certain length of time to feel pain and suffering? What happens when the decedent only lived for a few seconds after the accident? Did they still have pain and suffering?

A developing concept called “conscious pain and suffering” will very likely emerge at the front of this conversation and become a heavily litigated topic. Conscious pain and suffering includes the knowledge of one’s impending death, the terror they feel in those moments, and the unmitigated pain they experience before succumbing to their injuries. With these guideposts in place, it can be argued that someone can experience excruciating pain and suffering even if they were only alive for a matter of seconds after their accident.

If you lose a loved one, seek input about calculating the total value of your case from an attorney experienced with both wrongful death and survival action cases. It’s one of the best ways you can honor your loved one while securing the resources your family needs to heal and move forward.

We Can Handle Your Survival Action or Wrongful Death Accident Claim

To start a wrongful death or survival action claim, contact the attorney team at Sally Morin Personal Injury Lawyers. We handle many areas of the law, including wrongful death accident claims and survival actions that include damages for both the decedent’s pain and suffering, and the pain and suffering of the family left behind. We believe you should be able to focus on healing while we handle the legal details. Call 877-380-8852 today for a free case evaluation.

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