United States: New York's Governor Must Decide By Year's End To Sign Or Veto New Wrongful Death Legislation

New York Governor Kathy Hochul has begun her review of legislation passed by the New York State legislature to determine what bills she will sign and what she will veto by December 31, 2022. One of these bills, which has been the subject of much controversy, deals with categories of awards of damages available to the persons for whose benefit an action for wrongful death is filed. It also extends the basic wrongful death statute of limitations from two years to three years and six months after the decedent's death. A copy of the bill is at S74A (nysenate.gov). The new law, if signed, will take effect immediately, and will apply to all pending wrongful death actions (as to the potential damages), and to all actions commenced after the effective date.

Further, if the bill becomes law, defendants, and their carriers, will have to reevaluate the potential damages that are recoverable by a successful party after trial in a New York wrongful death lawsuit, revise their standard discovery requests, and ask their counsel to brush up on their rules of evidence with respect to dealing with decedents.

Apart from the extension of the statute of limitations, the new elements of damages and the scope of those who can recover damages may increase the potential value of wrongful death cases in New York.

Current law refers to "distributees" of the decedent as those who, conceptually, may recover for the decedent's wrongful death, such as a spouse and children, as well as some others. The new phrase, used by the bill, is "persons for whose benefit an action pursuant to this part may be brought," which appears to be much broader. Thus, marriage is not required and a person to whom the decedent is engaged to marry may qualify. Further, it becomes a jury question, rather than a matter of law for the court, as to which persons may recover.

For example, the new proposed amendment to Estates Powers and Trust Law (EPTL) § 5-4.4 provides:

The elements of the damages for such "persons," referred to above, is also much broader. Pursuant to the proposed amendment to EPTL § 5-4.3(a), it would include:

in addition to any other lawful element of recoverable damages, compensation for the following damages may be recovered: (i) reasonable funeral expenses of the decedent paid by the persons for whose benefit the action is brought, or for the payment of which any persons for whose benefit the action is brought is responsible; (ii) reasonable expenses for medical care incident to the injury causing death, including but not limited to doctors, nursing, attendant care, treatment, hospitalization of the decedent, and medicines; (iii) grief or anguish caused by the decedent's death, and for any disorder caused by such grief or anguish; loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent's death; (v) pecuniary injuries, including loss of services, support, assistance, and loss or diminishment of inheritance, resulting from the decedent's death; and (vi) loss of nurture, guidance, counsel, advice, training, and education resulting from the decedent's death.

Statutory interest is recoverable from the date of death, regardless of the date of the award.

Further, applicable "persons" could become adverse to each other, with each seeking his or her own counsel and opportunity to persuade the jury that he or she is entitled to greater damages, especially where insurance coverage is limited. Indeed, separate liability and damages trials, permissible at the discretion of the trial court, see N.Y. CPLR 603, could become more common, placing a greater burden on the judiciary and the jurors, and further increasing litigation costs.

If the bill becomes law, litigants on both sides in a wrongful death case may need to engage in more pretrial discovery in order to expand or limit the evidence that the jury will hear in considering both the amount of damages to award and to whom. For example, those on the defense side will have to revise their interrogatories and requests for production of documents to address both the elements of damages and the persons who may recover. In this regard, defendants and carriers will also have to consider and plan for the additional fees and costs, including investigation costs, which may be involved.

In essence, counsel for both plaintiffs and defendants will have to reconsider how to adjust their case strategies.

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