S.B. 447 May Open the Door to Additional Damages in a Survivor’s Action for Decedent’s Pain and Suffering | Newmeyer Dillion

Under long-standing California law, a lawsuit on behalf of a person who has suffered personal injury can compensate for, among other things, compensation for pain and suffering, but not a lawsuit for the surviving dependents of a deceased (that is, someone who dies of injury). A recent bill sponsored by the Consumer Attorneys of California, Senate Bill 447 (“SB 447”), would change this rule and allow a deceased’s personal representative to seek compensation for pain, suffering, or disfigurement of a deceased person if the cause of action arose before January 1, 2026. The practical effect of this change in law, if it comes into force, would be to significantly increase the amount of compensation in survival claims.

Existing articles of association

Under the current California legal system, if a person dies from injury caused by a wrongdoer, the successors / heirs of the deceased can file a survival lawsuit for damages to which the deceased would have been entitled to death. The damage that can be recovered in a survivor’s action is limited to the actual economic (monetary) damage that the victim suffered after the tortious act but before his / her death. These damages include lost wages, medical bills and any punitive damages. The current statutes are as follows:

In any lawsuit or proceeding by a deceased’s personal representative or successor in title in relation to the deceased’s cause of action, recoverable damage is limited to loss or damage suffered or suffered prior to his or her death, including any punitive or punitive or exemplary harm suffered or suffered by the deceased The deceased would have been entitled to repayment if the deceased had lived, and does not include pain, suffering or disfigurement.

(Code Civ. Proc. § 377.34.)

Amendments to the statutes

When SB 447 passed, section 377.34 would instead read as follows:

(a) In any lawsuit or proceeding by a personal representative or successor in title of the deceased, recoverable damage shall be limited to loss or damage suffered or suffered by the deceased prior to his or her death, including any penalties or penalties or exemplary damage to which the testator would have been entitled if the testator had lived, and do not include pain, suffering or disfigurement.

(b) Regardless of the subdivision (a), if the cause of action arose earlier than January 1, 2026, the recoverable damage in a lawsuit or proceeding by a testator’s personal representative or successor in title may include pain and suffering, suffering or distortion.

(Emphasis added for additions.)

Proponents see the law as a compensation for the scales of justice

Proponents of SB 447 see it as an opportunity to catch up with the rest of the country (the majority of states provide compensation for pain and suffering in a survival lawsuit) and end perceived injustice when a plaintiff dies before a judgment can be reached. They argue that the current legal system unfairly treats the innocent victim, essentially punishing them for succumbing to their injuries, as their death obliterates the ability of their loved ones to recover from the pain and suffering from the time of the wrongful act until the time of the wrongful act Death point. Proponents of the bill see the current law as a “co-compliance” for the defendant, encouraging defendants to pursue delaying tactics of compliance with investigation, availability and the like in the hope that a plaintiff will die before trial. Proponents argue that if the defendants incur a higher cost, it is simply the cost of wrongdoing, and deny that the proposed reform would affect the state economy. In essence, proponents have argued that the bill will serve to balance the balance between plaintiffs and defendants and will primarily encourage efficient use of the court system by discouraging delaying tactics.

The opposition see the law as the hardest blow to the public’s wallet

Opponent of SB 447 argue that since California already allows punitive damages recovery in survival proceedings, allowing survival pain and suffering would essentially act as a double intervention to the benefit of plaintiffs and their attorneys, who often work on emergencies. Additionally, opposition officials believe that if passed in California, the bill could result in significantly higher judgments due to the surge in non-pecuniary damage, as well as potentially larger punitive damages judgments, typically calculated in proportion to the underlying damages judgment. Opponents suggest that plaintiffs’ attorneys push for this law to be passed to increase case ratings and settlement claims, based on the fact that non-economic damage is the jurisdiction of the jury. Additionally, opponents are citing the impact of this change on insurance premiums, which may rise and ultimately penetrate deeper into the pockets of individuals who are already uninsured for punitive damages and will also be subject to higher premiums for which potentially much higher indemnities if the additional damages are recoverable. It could also have a deterrent effect on the insurance market as insurers may be less willing to insure risks in California.

Only time will tell if SB 447 is approved and passed. In the meantime, parties on both sides of the debate continue to stand up for their position and, ultimately, for their customers, who will feel the impact of SB 447 the most.