California Amends CCP 377.34 Permitting Recovery of Damages for Pain, Suffering, or Disfigurement in Survival Actions

San Francisco, Calif. (June 24, 2022) - On October 1, 2021, Governor Gavin Newsom signed into law AB 447, which amends California Code of Civil Procedure Section 377.34. This new law allows recovery of damages for pain, suffering, or disfigurement by a decedent’s personal representative or successor in interest, by way of a survival action, following the death of the decedent.

Prior to the passage of AB 447, damages for pain, suffering, or disfigurement could not be recovered following the decedent’s death. As a direct result, a number of seriously injured plaintiffs sought preferential trial settings, in order to ensure recovery of general damages, prior to an impending death.

AB 447 amended Section 377.34 of the Code of Civil Procedure to read:

377.34. (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 action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.

(Code Civ. Proc., § 377.34.)

The newly added Section 377.34(b) applies to actions filed between January 1, 2022 and January 1, 2026, as well as to all existing actions that have been granted a trial preference. This amendment is scheduled to sunset on January 1, 2026, but also contains language requiring the Judicial Council to report judgments and court-approved settlements to the legislature for purposes of further evaluation. Many commentators believe the amendment will be made permanent at the end of its sunset period.

Although the amendment increases exposure for businesses and insurers, the amendment adds layers of complexity to an already complex area of law. In deciding whether to pursue general damages under a survival action, plaintiffs’ attorneys and personal representatives will need to weigh the exposure of judgments and settlements to medical liens. Unlike a wrongful death claim, which is a personal action belonging to the surviving heirs of the decedent, a survival action is derivative of the decedent’s tort claim and is therefore subject to liens for medical expenses. The amendment may also impact the granting of preferential trial settings, since the underlying justification that a plaintiff will lose the right to pursue general damages will carry less weight.

Nonetheless, the practical effect of this amendment is to provide yet another avenue for plaintiffs to seek general damages, placing greater power in the hands of California’s juries, and placing businesses and insurers at greater risk for nuclear verdicts.

We also note the similarities between this amendment and a New York bill, known as the Grieving Families Act, currently working its way to Governor Kathy Hochul's desk for signature. Lewis Brisbois attorneys will continue to monitor this state legislative trend and will provide further updates and webinars as necessary.

For more information on this law, contact the author or editor of this alert. Visit our General Liability Practice page for additional alerts in this area.

Author:

Spencer H. Kelly, Partner

Editor:

Joelle Nelson, Partner