SB 447: Brings California in line with national norm on pre-death pain and suffering damages

After decades as an outlier, California is set to join the vast majority of states in recognizing a right of recovery for pre-death pain and suffering damages. On October 1, 2021, Gov. Gavin Newsom signed Senate Bill 447, bringing California in line with the 45 states and the District of Columbia that allow recovery of pre-death pain and suffering damages. SB 447 amends California Code of Civil Procedure Section 377.34 -- the survival statute -- which wiped out damages for pain, suffering or disfigurement endured by a loved one upon their death. The law took effect January 1, 2022.

Since 1961, it had been the law in California that when a plaintiff died, so too did their claim for the pain and suffering damages up until death. The result of insurance industry lobbying, this loophole created a perverse incentive -- if defendants waited long enough, the plaintiff could die, drastically decreasing the damages exposure for their wrongful conduct.

Sadly, examples of delay resulting in injustice are not hard to find. One was 75-year-old George Sweikhart, who filed a lawsuit against Akebono Brake Industry Co. Ltd. for asbestos exposure that resulted in a mesothelioma diagnosis in 2019. While Mr. Sweikhart's attorneys were able to get preferential setting for a trial date in mid-2020, COVID closures shut the courthouse doors and resulted in a continuance until early 2021. While the courts were effectively closed, the defendant stonewalled discovery. When the February 15, 2021, trial arrived, Mr. Sweikhart and his attorneys appeared for trial call, only to have the case continued two more weeks. Mr. Sweikhart died one week later. The defendant reaped the reward of delay in the form of a greatly stripped down wrongful death case with no pain and suffering damages for Mr. Sweikhart's excruciating death.

After decades of imbalance, CCP Section 377.34 now ensures that California will no longer arbitrarily cut off plaintiffs' claims for pain and suffering at death. Going forward, the new law applies to cases filed on or after January 1, 2022, and before January 1, 2026, as well as cases in which a trial preference was granted prior to January 1, 2022. Though only in effect for four years, SB 447 will hold defendants wholly accountable for the human suffering they cause. Not only does the new law fully honor the pain and suffering endured by those whose injuries were so severe as to be fatal, it also allows tort law to realize its full deterrent effect.

Unsurprisingly, the passage of SB 447 has resulted in complaints of all types from corporations and insurance companies. They often take the form of arguing that insurance costs will go up, but they never offer any evidence to support this claim. Likewise, they cannot cite any instances of lowering rates when the industry receives favorable court decisions or legislation. The best way to prevent profit-obsessed insurance companies from raising rates is to regulate them through the Department of Insurance. The bill's detractors also go so far as to claim that pro-consumer laws like this are an invitation for companies to leave the state. Of course, these claims too are made without evidence. When has an insurance company ever been straight with you about money? Insurance companies only care about their profits and will say anything to protect and inflate those.

The truth is, California had been one of only five states in the country to take the outdated view that pre-death pain and suffered died with a plaintiff. SB 447 was far from a radical step. To the contrary, California had been radically outside the norm nationally. For at least the next four years, Californians will benefit not only from this added protection of the dignity of their lives, but also from the added deterrent effect bad actors will face. 