SB 447 eliminates the death discount and fixes an antiquated, unjust law

California is one of a mere handful of states -- along with Arizona, Colorado, Florida and Idaho -- that grants a "death discount" to wrongdoers who kill their victims outright. When an injury victim who seeks compensation dies before trial, that victim's human suffering damages are extinguished, perversely giving a financial windfall who the one responsible for causing those damages. Senate Bill 447 will protect these damages from being wiped out simply because the victim dies.

Contrary to the assertions of this bill's opponents, there is no high-minded legislative policy reason that the death discount persists. It exists purely because, in 1961, insurance companies whose policies finance bad actors lobbied for this special treatment. This is an outdated law, one that a majority of states have rightfully left behind. And the existence of the death discount clogs our already-burdened court system by incentivizing delaying tactics -- not only because corporate defense attorneys bill by the hour, but because every delay increases the odds that a severely injured person will die before a defendant can be held to account. The Legislature should pass SB 447 and eliminate the death discount.

SB 447 has broad support.

The death discount falls particularly hard on elders, stay-at-home parents, children, and workers whose earned income is modest; for these victims, their human suffering damages are most of the compensation they can recover for their injuries. That's why SB 447 is also supported by a broad coalition of Californians, including the California Alliance for Retired Americans; California Nurses Association; California Teamsters; the Coalition for Humane Immigrants' Rights; the State Building and Construction Trades Council of California; Equal Rights Advocates; and the United Food and Commercial Workers Western States Council.

The death discount is a political creation of the insurance lobby.

Ironically, opponents of SB 447 recycle old arguments about "speculative" or "personal" damages which were rejected by the Legislature decades ago. In 1960, the California Law Revision Commission addressed a plan to modernize California's damages statutes, including damages in a survival action when an injured victim died. The Commission recommended that such damages should be preserved, including pain and suffering damages, rejecting arguments that they were too speculative or could be claimed by the living victim alone: "Causes of action should survive because they exist and could have been enforced by or against the decedent and because, if they do not survive, the death of a victim produces a windfall for the wrongdoer. Under this view it is inconsistent to disallow elements of damages intended to compensate the decedent for his injury merely because of the fortuitous intervention of the death of either party." (Recommendation and Study Relating to Survival of Actions, October 1960, page F-7.)

These recommendations did not survive intense lobbying by the insurance industry. In a letter forwarding the final bill to the governor for signature, State Senator James Cobey noted that while it was "peculiar" to argue that a wrongdoer should receive a windfall "when he has managed to kill, instead of merely injure the unfortunate victim," the bill had been amended to erase a victim's pain, suffering and disfigurement on death "at the request of the insurance companies." (May 31, 1961 letter from Sen. James A. Cobey to Gov. Edmund G. Brown.) As a representative of the commission dryly observed, "It was apparent at the hearing that extensive lobbying had been accomplished by the insurance industry prior to the hearing." (April 14, 1961 letter of John H. DeMoully, Executive Secretary of the California Law Revision Commission.)

Existing law burdens the courts and encourages bad-faith litigation tactics

Code of Civil Procedure Section 377.34 does not just grant a windfall when a victim dies; it has the long-term effect of encouraging defense attorneys to do everything possible to drag out and stall cases until a plaintiff dies. Besides the fact that most such defense attorneys bill by the hour and thus directly benefit from protracted litigation, delaying tactics raise the odds that a severely injured victim will die before trial, greatly reducing the damages that their clients will eventually have to pay for their misconduct. This discourages efficiency in litigation and creates an absolute disincentive for a guilty company -- or its insurers -- to resolve a case even when liability is clear. And when our already-burdened courts must dig through the morass of these dilatory litigation tactics, it creates a ripple effect that impacts the ability of all Californians to use the court system that is funded by their tax dollars.

SB 447 does not "expand" damages; it preserves them.

Contrary to the arguments of opponents, SB 447 does not create a new type of damages or grant additional damages. An injury victim who manages to survive until trial may recover human suffering damages, up to any existing statutory caps that may apply to their claims. SB 447 simply preserve the right for a deceased victim's heirs to ask for those same damages at trial. Any existing limitations or caps on damages are unchanged.

The bill has been amended to add a sunset provision.

In the spirit of compromise, and to take into account the devastating effects of the COVID-19 pandemic on the courts, the author of SB 447 has added a four-year sunset provision that would limit its application to claims that accrue in the next four years. While it is obvious from the fact that the vast majority of states have adopted such laws that SB 447 will not, in fact, cause the sky to fall, a sunset period will permit the Legislature to evaluate the law.

SB 447 remedies an outdated law that almost every state has rejected, and which benefits tortfeasors at the expense of injury victims. The Legislature should remedy this long-standing injustice and pass SB 447. 