Funeral Wrongful Death

In most states, family members of loved ones who died of personal injuries have the right to bring a lawsuit against the at-fault party and pursue a broad array of damages including:

  • loss or damage the decedent sustained before death;
  • punitive or exemplary damages the defendant could have recovered had the decedent lived; and
  • damages related to the decedent’s pain, suffering or disfigurement.

By contrast, until very recently, in California, plaintiffs in wrongful deaths action could not pursue damages related to the decedent’s pain, suffering or disfigurement. Indeed, in the personal injury world, this was known as the “death discount,” as defendants would actually be rewarded by this limitation if an injured plaintiff died before trial or settlement.

However, with Senate Bill 447 (“SB 447”), the California Legislature changed the law. At least temporarily. Specifically, SB 447 amended Code of Civil Procedure section 377.34 and included the following language:

“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.”

Indeed, this new language allows plaintiffs in wrongful death actions to pursue damages related to their loved one’s pre-death pain, suffering, or disfigurement. That said, it is important to know that Code of Civil Procedure 377.34, as currently drafted, sunsets on January 1, 2026. By including this expiration provision, the California Legislature appears to have enacted SB 447 on a trial-run basis. Indeed, SB 447 requires plaintiffs in personal injury actions to submit a copy of the court-approved settlement or judgment to the California Judicial Council within 60 days of obtaining the result. In turn, the introductory language to SB 447 requires the Judicial Council to transmit a report to the California Legislature detailing the information the Judicial Council learns from the judgements. There is no question that the California legislature is compiling data regarding of the effects of SB 447.

On another note, the language of Code of Civil Procedure 337.34 includes additional details about which potential wrongful death plaintiffs should be aware. First, the language applies to a “decedent’s personal representative or successor-in-interest” who brings the suit.  Here, the legislature alludes to who is a proper plaintiff in a wrongful death action. The who is governed by California Code of Civil Procedure section 377.60, which defines a proper plaintiff(s) as: “The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.” To that end, if your loved one has died of personal injuries, it is important to identify whether you are a proper plaintiff to bring a wrongful death action. If you are, it is important that you immediately pursue your rights, as California has a “one action rule” for wrongful death lawsuits that require all potential plaintiffs to participate in a single lawsuit. This means that if the decedent has multiple surviving children, they must all join the same lawsuit and cannot bring separate actions.

Further, Code of Civil Procedure section 337.34 creates an additional carve-out for plaintiffs who were granted trial preference prior to January 1, 2022. To that end, if you are a plaintiff in a personal injury case that is already filed, it is important to know whether your judge has already granted you trial preference in your case. Specifically, trial preference is governed by Code of Civil Procedure section 36, which denotes specific litigants who are entitled to have their case tried faster than the standard case; specifically, within 120 days of requesting and receiving “trial preference.” Individuals with trial preference include persons over the age of 70, persons under the age of 14 (who are plaintiffs in personal injury actions), or any person who proves by “clear and convincing evidence” that raises a “substantial doubt” that person will be alive in six months. To that end, if you (1) fall into one of the categories of persons, and (2) your wrongful death case has already been granted trial preference, you may pursue damages related to the decedent’s pain, suffering or disfigurement.

Fortunately, SB 447 provides wrongful death plaintiffs with an avenue to pursue additional damages related to the loss of their loved ones.   The attorneys at MKP Law Group, LLP have decades of experience representing plaintiffs in wrongful death actions. If you are considering bringing a wrongful death action on behalf of your loved one, contact MKP Law Group, LLP or call us at 310-285-5353 for your 100% free consultation today.