Insurance Journal: New York Lawmakers Again Pass Wrongful Death Damages Bill. Is Another Veto in Store?

By: Andrew G. Simpson

New York lawmakers have again overwhelmingly passed legislation to overhaul the state’s 1847 law that governs damages that can be awarded in wrongful death cases.

But it’s unclear whether the latest version of the Grieving Families Act will pass muster with Gov. Kathy Hochul, who in January vetoed a similar 2022 measure after lawmakers rejected her amendments. She has called for a thorough study of the economic impact of the proposed changes to the law.

The 2023 version of the bill addresses a few but not all of the concerns Hochul had with the 2022 version. But it is not accompanied by a fiscal impact study.

New York’s current wrongful death law does not allow recovery for pain and suffering, mental anguish, or loss of companionship for surviving family members. It restricts damages to pecuniary or tangible monetary damages only. It further limits recovery in wrongful death cases to a decedent’s immediate family members– a child, parent, spouse, or the estate’s representative.

Critics have been attempting for years to expand the law to allow emotional damages including for grief or anguish and loss of affection and companionship in wrongful death cases and add others such as siblings or cousins to the list of family members eligible for damages. They also want to extend the two-year statute of limitations in wrongful deaths and apply the changes retroactively.

Advocates for victims claim the changes would bring the state in line with other states and is long overdue. A New York Public Interest Research Group report said that 47 other states already allow their courts to consider the value of lost relationships and 20 states already recognize claims for the grief and mental anguish experienced resulting from a wrongful death. Alabama and New York are the only states that allow neither, NYPIRG said.

Governor’s Veto

After years of trying to pass reform legislation, lawmakers succeeded last June by overwhelming margins in the Senate and Assembly, only to have Hochul, a Democrat, veto the bill seven months later in January.

Hochul had tried to negotiate what she saw as a compromise that would limit claims for grief and emotional damages to parents who suffered the loss of a child under age 18 and set a cap on damages. She also suggested changes not be applied retroactively and that the statute of limitations not be extended. Finally, she asked that claims for medical malpractice be excluded from any revision. But sponsors decided her amendments went too far.

In her veto message, Hochul said she felt the issue needed more study. In the end, she sided with businesses, including insurers and health care firms, and with mayors, who warned the changes would impose a major burden on the state’s economy and result in higher liability insurance costs for businesses, municipalities, drivers and the medical community.

The Democratic sponsors of the bill said they were “extremely disappointed” in the veto at the time. They dismissed Hochul’s claim that the measure needed more study. “The truth is this legislation has been considered more carefully than almost any other bill passed during our time in Albany,” they maintained.

In May, the same sponsors, New York State Senator Brad Hoylman-Sigal (D/WFP-Manhattan) and Assembly Member Helene Weinstein (D-Queens), reintroduced their Grieving Families Act with amendments. Lawmakers quickly passed the revised version –again overwhelmingly by a vote of 54-8 in the Senate and 147-2 in the Assembly. The new bill has been sent to Hochul for her signature.

Sponsors say the new bill responds to the governor’s concerns by clarifying the bill’s retroactive effect, limiting the types of damages that can be recovered, reducing the extension of the statute of limitations, and clearly defining who is a close family member eligible to recover.

The damages allowed are similar to those sought in the prior legislation. They include “loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death.”

The 2023 version expands the group of people who might bring a case for wrongful death to include spouses or domestic partners, children, foster children, step-children, step-grandchildren, parents, grandparents, step-parents, step-grandparents, siblings or anyone acting “in loco parentis” to the deceased person. But cousins or other relatives would not be eligible.

While not completely retroactive, the 2023 version applies to any cause of action “accruing on or after July 1, 2018, regardless of when the claim was filed.”

The new bill does not exclude medical malpractice cases nor does it set a cap on damages as Hochul has proposed.

Both Sides Now

The same interests that supported and opposed the measure last time around have stuck to their positions regarding the 2023 bill.

The sponsors’ stated justification for the new law is that under the current one New York families “who suffer the loss of a loved one must endure a second blow, when they discover the state’s civil justice system is unable to compensate them for their emotional loss.”

Senator Hoylman-Sigal said New York is out of step with other 47 states’ wrongful death laws. “We’ve denied countless family members the proper consideration for their loved ones since the current statute considers only economic loss,” he said. “Courts are forced to discount the value of lives in wrongful death actions for those who aren’t breadwinners for their families, resulting in a disproportionate negative impact on people of color, women, children, seniors and New Yorkers with disabilities.”

Supporters contend that the current law, which awards compensation for pecuniary loss only, impacts most harshly on children, seniors, women and people of color; people who often have no income or significantly less income.

Supporters count families affected by gun violence and families of workers killed on the job as among the beneficiaries of the law changes.

“The families who are left behind, emotionally traumatized by horrific gun violence like the Tops shooting in Buffalo, deserve to have their pain matter,” said Rebecca Fischer, executive director of New Yorkers Against Gun Violence.

“Our current wrongful death statute puts low-income workers in danger by shielding employers from consequences when they fail to make worksites safe. The Grieving Families Act will ensure justice for families of workers regardless of their income, race, gender or age,” said Charlene Obernauer, executive director of the New York Committee for Occupational Safety and Health.

Opponents say they don’t object to helping families affected by wrongful deaths but they do worry that the costs of expanding the law as proposed would burden the state’s economy, raising costs for businesses, municipalities and the medical industry.

“We remain concerned that the legislature has done no fiscal impact analysis of this bill,” said Tom Stebbins, executive director of the business group, Lawsuit Reform Alliance of New York. “Actuarial analysis shows that even with the proposed amendments our heroes in healthcare can expect a dramatic increase in their liability insurance. Our auto, homeowners, and insurance for small business owners will all balloon under this bill.”

He maintained that if the state wants to get money to victims’ families, it should reduce attorney’s fees. “This is essential to ensuring the legislation doesn’t amount to a big payout for trial lawyers at the expense of taxpayers and families in mourning,” Stebbins said.

“While we wholeheartedly support the intentions behind the push to update the law, the approach taken will be devastating for municipal budgets and the services they support,” wrote Peter Baynes, executive director at the New York State Conference of Mayors and Municipal Officials.

The New York Medical Society also opposes the bill, citing a study of the 2022 bill that concluded that the new damage awards would significantly raise medical liability costs—by as much as 40%.

“These cost increases are completely untenable to an already distressed healthcare system where our patients are already facing challenges in accessing needed care,” commented Paul A. Pipia, MD, president of the doctors’ group.

The bill’s fate is now up to the governor again.

“It’s time once again to gather our forces—as we successfully did earlier this year—to urge Governor Hochul to veto the bill,” commented the medical group’s Pipia.

“Since 1994, when I first introduced this bill, I have been fighting for justice for families who have had loved ones wrongfully taken from them. And, with the introduction of this new version of the Grieving Families Act, I will not give up in trying to persuade the Governor that enacting this bill is the right thing to do for families, seniors, children, homemakers, and indeed all New Yorkers,” declared Assembly Member and sponsor Weinstein.