Senate Bill S74A seeks to dramatically expand recoverable damages in wrongful death actions in New York

Senate Bill S74A, known as New York’s Grieving Families Act, would change the provisions of the state’s Estates, Powers, and Trusts Act (EPTL) regarding payment and distribution of damages in wrongful death actions. The purpose of the bill is to allow families of victims of wrongful deaths to recover compensation for their emotional anguish, which is not currently available under New York law.

Governor Kathy Hochul is expected to sign the bill. Once enacted, this new legislation will allow surviving family members to recover non-economic damages in wrongful death actions. This amendment is part of a trend in state law to expand available damages to surviving family members asserting claims for the loss of a loved one. For instance, California recently enacted SB 447which now allows the recovery of damages in survival actions to include pain, suffering or disfigurement of a deceased.

Expanding the scope of a defendant’s liability in this way increases the risk of exposure to higher damages and other lawsuits. Below is a discussion of the proposed legislation.

The existing legal framework

EPTL § 5-4.1 allows an estate representative to assert a cause of action for wrongful death on behalf of the “beneficiaries” of the deceased who suffered a pecuniary loss within two years of the death of the deceased.

EPTL § 4-1.1 defines “beneficiaries” as a surviving “spouse” and blood relatives (eg parents, descendants, siblings). Its provisions have been interpreted strictly.[1] The cause of action belongs to the beneficiaries, unlike an action for bodily injury which, according to EPTL § 13-3.2, belongs to the estate of the deceased.[2]

To date, New York courts have limited compensation to “pecuniary damages” which are defined in the provisions of EPTL § 5-4.3.[3] Courts have prevented recovery of non-economic damages, such as grief, loss of affection and companionship, and loss of consortium.[4]

Proposed Amendments

The text of Senate Bill S74A makes several significant changes to the provisions of the EPTL.

Article 1 amends EPTL § 5-4.1 to extend the period of action for wrongful death by one year and six months.

Section 2 would modify EPTL § 5-4.3(a) to allow the recovery of the following:

  • Reasonable funeral expenses of the deceased paid by the persons for whose benefit the action is brought, or for whose payment any person for whose benefit the action is brought is liable
  • Reasonable funeral expenses of the deceased paid by the persons for whose benefit the action is brought, or for whose payment any person for whose benefit the action is brought is liable
  • Reasonable expenses for medical care related to the injury causing death, including but not limited to physicians, nursing, attendant care, treatment, hospitalization of the deceased, and medications
  • Grief or anguish caused by the death of the deceased, and for any trouble caused by such grief or anguish
  • Loss of love, society, protection, comfort, companionship and consortia resulting from the death of the deceased
  • Monetary damages, including loss of services, support, assistance and loss or diminishment of inheritance resulting from the death and
  • Loss of care, guidance, counsel, advice, training and education resulting from the death of the deceased.

Section 3 modifies EPTL § 5-4.4 to allow recovery by immediate family members.

Article 4 modifies EPTL § 5-4.6 to replace the term “rightful claimants” with “persons for whose benefit the action is brought”.

Section 5 states that the law takes effect immediately and applies to all pending actions and actions brought from that date.

The justification

According to Senate Bill S74A, “[c]Current law only allows compensation for pecuniary damage, making it impossible for close family members to receive any compensation for their non-economic damage.

As the justification cited for the proposed changes, the current law, which awards compensation only for pecuniary losses, “has a more severe impact on children, the elderly, women and people of color, who do not often have no income or much less income, and are traditionally undervalued in our society.”

The ramifications

The implications of the proposed amendments for defendants are significant. The amendment to section 1 would extend the statute of limitations from two years to three years and six months, potentially increasing the number of wrongful death lawsuits and running the risk that documents and/or witnesses may not be available for defend against claims filed years after the alleged wrongdoing.

Section 2 amends EPTL § 5-4.3 to allow recovery of emotional damages if a tortfeasor is found liable for causing death. This would open the door to non-economic damage such as grief, sympathy, society, and loss of company or consortium. These damages can far exceed the amount of economic damages, as intangible factors, such as subjective values, beliefs, emotional sensitivities, and differing perspectives of justice, often determine their assessments. Courts and juries often struggle to calculate just and rational non-economic damages, and they can vary widely from case to case.

Section 3 amends EPTL § 5-4.4 to allow collection by immediate family members, thereby expanding the scope of potential claimants with standing to assert causes of action for wrongful death.

Clause 5 of the bill provides that the law will come into force immediately and will apply to all pending actions, as well as newly filed actions brought on or after the date the law comes into force.

While some states, such as New York, have instituted apportionment laws, such as CPLR § 1601[5]there is no denying that the proposed changes contemplated by Senate Bill S74A will alter the landscape of damage recoveries across the state.[6]

From a claims administration perspective, the increase in available damages associated with this bill, as well as the recent legal requirements for detailed insurance-related disclosureswill almost certainly lead to increased claims and lawsuit filings in New York and drive up the associated costs of defense, settlement and administration.

If these proposed changes are enacted as expected, defendants should be prepared for an increase in recoverable damages in wrongful death actions for all pending and newly filed lawsuits statewide.

Norman D. Briggs