JD Supra: Governor Hochul Vetoes Grieving Families Act

By: Lisa Fitzgerald and Alexander Papa (Lawyers for Weber Gallagher Simpson Stapleton Fires & Newby, LLP.)

On January 30, 2023, New York Governor Kathy Hochul vetoed Senate Bill S74A, also known as the “Grieving Families Act.” The Act sought to expand the compensable damages in wrongful death actions in New York and expand the definition of a “family member” who can recover under such actions. The bill would also extend the time to bring a wrongful death action from 2 years to 3 years and 6 months.  

Under the new law, New York Estates, Powers, and Trusts Law (EPTL) §5-4.3 would be amended to allow “close family members” to recover damages for emotional loss when a tortfeasor is found liable for causing a death. “Close family members” would potentially include spouses/domestic partners, children, parents, grandparents, stepparents, and siblings. As written, it would be up to the finder of fact to determine “close family members” based upon specific circumstances relating to the individual’s relationship with the decedent.

One of the larger contentions concerning the Act, other than vagueness as to who would qualify as a “close family member,” is the lack of a cap on the damages that can be recovered by the “close family member” for their grief. 

In vetoing the Act and echoing her sentiments in an op-ed published by the New York Daily News, Governor Hochul wrote that what was missing from the proposed Act “was a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the state’s complex healthcare system.”

Comment: The far-reaching proposals to amend New York’s wrongful death statute would have a tremendous impact on the insurance industry. Critics cited to an analysis by Milliman, Inc. which estimated that the Act, as written, would increase insurance premiums by over 11%, or an estimated $2.14 billion. While the Act was awaiting Gov. Hochuli’s signature, the defense bar observed that settlement discussions were stymied by plaintiffs’ attorneys who expressed the likelihood of the Act’s passage, thus inflating the value of their claims. Governor Hochul’s veto of the Act demonstrates her reluctance to completely overhaul and greatly expand New York’s wrongful death statute. The New York Legislature will likely re-address amendments to the wrongful death statute during the current legislative session. However, with the veto of Senate Bill S74A, the plaintiff’s bar will be unable to utilize the Act as a sword in settlement negotiations.