JD Supra: A Sleeping Giant: New York’s Grieving Families Act

By: Michael Cannata, Frank Misiti, and Brian Schlosser

The pen is mightier than the sword — especially a pen held by a sitting governor. Currently sitting on the desk of New York’s governor is a piece of proposed legislation known as the “Grieving Families Act” which, if signed into law, will significantly broaden not only the categories of damages available in New York for wrongful death cases, but also the types of individuals who can recover them. Moreover, the proposed legislation also raises serious issues for insurers to consider in evaluating wrongful death claims.

First, under the current legislative paradigm, damages in wrongful death actions are limited “exclusively for the benefit of the decedent’s distributees.” The proposed legislation, however, attempts to distance itself from the “distributee” concept and would allow “surviving close family members” to recover damages in wrongful death cases. “Surviving close family members” would include the decedent’s:

spouse or domestic partner;

children;

foster-children;

step-children;

step-grandchildren;

parents;

grandparents;

step-parents;

step-grandparents;

siblings; and

any other person standing in loco parentis to the decedent.

Second, the proposed legislation would also expand the types of damages recoverable in wrongful death actions which, at present, are largely limited to economic losses , medical bills, and funeral costs. Specifically, the proposed legislation would expand the types of damages that are recoverable to include: (i) grief or anguish caused by the decedent’s death; (ii) loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death; (iii) pecuniary injuries including loss of services, support, assistance, and loss or diminishment of inheritance, resulting from the decedent’s death; and (iv) loss of nurture, guidance, counsel, advice, training, and education resulting from the decedent’s death.

Finally, the proposed legislation features language which will affect timing issues connected to wrongful death claims. First, the proposed legislation seeks to lengthen the statute of limitations to commence wrongful death actions from two years to three years. And second, the proposed legislation would apply retroactively to wrongful death claims “…that accrue on or after July 1, 2018, regardless of when filed.”

Expectedly, apart from altering the general liability defense landscape, the proposed legislation will also have consequences for insurers that cover such risks in New York.

First, given that the proposed legislation would expand the types of individuals that may seek recovery, it is likely that, if passed, both the number of lawsuits, and the number of individual plaintiffs named in such lawsuits, will increase. This will increase the complexity of wrongful death cases, the amount of discovery required to defend such cases, the length of such cases, and the costs associated with defending them.

Second, given the relatively amorphous nature of the categories of damages that will become recoverable should the legislation pass (e.g., grief or anguish, loss of love, society, protection, comfort etc.), valuing wrongful death cases will, undoubtedly, become more difficult. Oftentimes, one of the first things defense counsel must do in wrongful death cases is attempt to evaluate both potential liability and damages. One of the key benefits of an early and accurate case assessment is that it may facilitate a business resolution and avoid the costs of a lengthy, and oftentimes heart-wrenching, trial. However, assessing damages under the proposed legislation may become more difficult; juries could be more inclined to award damages based on emotion as opposed to the facts introduced into evidence. Put simply, how does one come up with a figure to adequately compensate for “loss of love”? And, relatedly, what types of expert witnesses could one proffer to opine on valuing this type of harm?

Third, New York is one of the few states that does not place a ceiling on the amount of damages that plaintiffs can recover in wrongful death actions. In fact, New York law simply provides that “the damages awarded to the plaintiff may be such sum as . . . deem[ed] to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death. . .” Given that the damages awarded in wrongful death actions would likely increase under the proposed legislation, insurers that provide excess or umbrella coverage for wrongful death claims will likely want to take a more proactive role in the defense of their insureds given their potential exposure.

Finally, as outlined above, the proposed legislation is retroactive to July 1, 2018, regardless of when the lawsuit is filed. This means that pending cases which fall within this “retroactivity period” — cases for which insurers likely set reserves long ago — would have to be reevaluated to ensure that appropriate reserves are maintained.

Candidly, there are many issues — certainly more than those identified above — that will need to be resolved in the months and years to come if this legislation were to be signed into law. Only time will tell what happens next.