Personal injury lawyers have mounted a nationwide campaign to expand liability under state wrongful death acts. Plaintiffs’ lawyers know that tragic accidents present an opportunity for excessive awards that go far beyond providing reasonable compensation to those who have lost a loved one (and a substantial contingency fee).
They also know it is difficult for policymakers to push back against legislation presented as aiding “grieving families.” State officials can look to the courageous example set by New York Governor Kathy Hochul who vetoed the most extraordinary overreach in this area in recent years.
Under early common law, a person’s death extinguished personal injury claims that he or she could have brought. This rule was often criticized, leading states to adopt Wrongful Death Acts in the mid-to-late 1800s. Wrongful Death Acts provided a new statutory remedy for family members of a person who had died due to negligent or other tortious conduct. They typically authorize a personal representative of the decedent to seek damages on behalf of the person’s spouse and children.
When states enacted Wrongful Death Acts, legislators were keenly aware that litigation following a person’s death poses a significant risk of excessive verdicts. For that reason, these laws often limit recover- able damages to pecuniary losses – items for which one can establish an economic value, such as lost future income. Pecuniary damages also include the value of services that a spouse would have contributed to a household or the education, guidance, and training a parent might have provided to a minor child. The value of pecuniary damages, which is often established through expert testimony, can be substantial.
While some states have allowed recovery by spouses or children for loss of consortium, society, comfort, or companionship, most states have not opened the door to broader recovery of noneconomic damages, such as for grief or mental anguish. That limitation is consistent with traditional tort law principles that ordinarily do not permit recovery of damages for purely emotional harms absent special circumstances. It also reflects the fact that the grief associated with the loss of a family member is an inevitable part of life, whenever it occurs. These limitations typically do not affect the availability of compensation for any pain and suffering a person experienced before he or she died, which is usually recovered through a separate “survival” claim.
Some state laws limit the total amount of damages or nonpecuniary damages recoverable in a wrongful death action or have a separate law limiting noneconomic damages in all civil cases or medical liability actions.
Legislators adopted these types of constraints because they recognized that the tragedies underlying these claims, and understandable sympathy for the victims and their families, can easily lead to unjustifiably huge awards. Rather than provide reasonable compensation to family members, as the civil justice system
is intended, a wrongful death suit can transform an accident that a company may not have been able to prevent into a multi-million-dollar verdict that can destroy an individual or business.
The plaintiffs’ bar is engaged in a concerted effort to eliminate the reasonable constraints that have long been a part of Wrongful Death Acts. At least eleven states considered legislation over the past year that would have allowed a broader range of people to sue, expanded recoverable damages for emotional harm, raised or eliminated damage caps, authorized punitive damages, or lengthened the statute of limitations for bringing such claims.
Some legislation, like the “Grieving Families Act” (S74A), which Governor Hochul vetoed in January 2023, combined many of these expansions of liability. The bill was a dream for the state’s personal injury bar – allowing anyone who could claim a “close” relationship to the decedent to sue, nearly doubling the amount of time to file a lawsuit from two to three-and-a-half years, and adding several new categories of nonpecuniary damages, including for grief or anguish, without any damage limit. In her veto message, Governor Hochul recognized that the bill represented an “extraordinary departure from New York’s wrongful death jurisprudence and may result in significant unintended consequences.” She observed that these consequences would include confusing judges, juries and litigants with overlapping categories of damages, requiring courts and claimants to grapple with competing claims asserted by family members, worsening the “already-high insurance burdens on families and small businesses, and further straining already-distressed healthcare workers and institutions.”
Ultimately, five states enacted expansions of liability under Wrongful Death Acts into law in 2023. Maine (H.P. 581) raised the amount recoverable for loss of comfort, society and companionship, including emotional distress, from $750,000 to $1 million, which will automatically increase each year for inflation, and increased the law’s punitive damages maximum from $250,000 to $500,000. Delaware (S.B. 81) and Illinois (H.B.0219) added the threat of punitive damages in wrongful death claims. Minnesota altered its wrongful death and survival statutes to permit recovery beyond economic losses (S.F. 2909), repudiating decades of precedent. And Rhode Island increased its unique minimum recovery in wrongful death actions from $250,000 to $350,000 (H. 5513).
This trend is continuing. In fact, within months of Governor Hochul vetoing the New York bill, legislators introduced another bill (S.6636/A.6698) that, rather than taking a more moderate approach, doubles down by including the same extreme aspects as the original proposal. The state legislature passed the bill this summer and the governor is reviewing it though the legislation has not officially been delivered to her desk yet. If enacted, New York’s reputation will be further cemented at or near the top of the list for massive verdicts, medical liability payouts, and auto insurance costs.
