JDSupra: Pending Revision to NY Wrongful Death Law Will Increase Exposure to Trucking Companies

By: Ian Daniels and James Wescoe

New York’s “Grieving Families Act,” Senate Bill S74A, has been brought to Governor Kathy Hochul’s desk for approval or veto after passing the New York Senate Assembly. The bill, which is expected to be signed into law, will significantly expand the potential pool of eligible claimants in wrongful death cases brought in New York State. Even more problematic, the new law will allow newly eligible claimants to recover damages beyond those presently permitted under the existing wrongful death statute. To make matters worse, the new law will extend the statute of limitations for bringing wrongful death lawsuits from two years from the date of the fatality (not the date of the accident that caused the fatality) to three years and six months from the date of the fatality.

As presently written, New York’s wrongful death statute provides compensation for financial losses directly resulting from the death of a family member, including funeral costs, lost wages and lost future earnings. The revised statute will open the door to additional claims, including loss of consortium, pecuniary losses, loss of nurture, and grief or anguish. Thus, while the existing statute provides a formulaic method for calculating damages based on the decedent’s measurable financial contributions to his or her survivors, the new law adds new categories of “soft” damages that tug on the heartstrings of sympathetic jurors and are nearly impossible to quantify when assessing the defendant’s potential exposure.

In addition, the new definition of “family member” will include not only surviving spouses and children, but “partners,” parents, grandparents, stepparents, and siblings. Instead of a grieving widow or widower and his or her children testifying about the loss of their father or mother or husband or wife, an entirely new class of claimants will be able to testify about the effect of the decedent’s absence in their lives. Where now the law seeks to compensate the nuclear family, the new law’s broad reach will include the decedent’s extended family. The effect of this revision cannot be understated. Exposure in wrongful death claims will conservatively double and possibly end up being three to four times as high as under the existing statute. For trucking companies, the consequences are incredibly significant. The sudden and often violent nature of heavy truck fatality accidents already inflame the passions of jurors and judges. Expanding the list of potential grieving survivors will only make things worse.

The expansion of the statute of limitations to three years and six months is also quite problematic, as it will allow more time for witnesses to disappear, evidence to go stale, and memories to fade. Thus, it is supremely important for trucking companies and their insurers to aggressively and immediately investigate serious fatality accidents so that they may gather evidence and data, preserve key information and secure statements from key witnesses, including the truck driver. Failure to do this will make it nearly impossible to effectively defend a fatality case if a lawsuit is filed on the eve of the new statute.

Critics of the bill cite the negative economic impact that will affect the trucking industry as a consequence of higher insurance premiums. New York already has some of the highest liability insurance premiums in the country, and further expansion of potential liability could increase trucking insurance premiums by as much as $2.2 billion.[1]

The revised statute was drafted in response to the crisis that emerged in New York, where families who lost seniors in nursing homes during the COVID-19 pandemic demanded redress for their damages beyond those contemplated by the existing wrongful death statute. While many states have passed similar laws, New York’s new wrongful death statute is unique in that it does not cap damages.[2] Thus, the consequences for the trucking industry are enormous. Should the Governor, as expected, sign the bill into law, trucking companies and their insurers need to amplify their initial response efforts and, whenever possible, aggressively seek to resolve potential claims before litigation is commenced, even where liability is at issue. The economic consequences of having a jury apply the new law to a trucking fatality case may end up being catastrophic.

[1] https://www.propertycasualty360.com/2022/07/21/new-york-legislature-passes-grieving-families-act-414-224969/?slreturn=20220906095502

[2] https://cbs6albany.com/news/local/hochul-questioned-on-grieving-families-act-i-know-its-critically-important

Ian Daniels and James Wescoe are lawyers for Weber Gallagher Simpson Stapleton Fires & Newby, LLP.