Written By Christopher B. Dolan and Allison Stone
This week’s question comes from Kate A. from Oakland: I read that Senate Bill 447 was important to many people who may have a personal injury case. Why is Bill 447 significant and why does it matter?
Thank you for reaching out and for your question, Kate.
WHAT IS SENATE BILL 447?
Senate Bill 447 (“S.B. 447”) was just recently signed by Governor Gavin Newsom on October 1, 2021.
S.B. 447 changed California law to allow for recovery of a decedent’s non-economic damages for pain, suffering and disfigurement by a decedent’s personal representative or successor in interest after a decedent’s death.
Under California law, a personal injury action brought by someone who suffers a bodily injury can recover, among other damages, non-economic damages for their pain and suffering. By contrast, under the prior law in California, in an action brought by a decedent’s survivors for someone’s death from an injury, non-economic damages for their pain, suffering and disfigurement suffered before death was not recoverable. (California Code of Civil Procedure Section 377.34)
More specifically, California Code of Civil Procedure (“C.C.P.”) Section 377.34 previously limited recoverable damages to economic damages only if a plaintiff died before a judgment was entered. In other words, when a person dies from an injury, the decedent’s successors or heirs can file a survival lawsuit to recover damages that the decedent would have been entitled to from the time of the injury up until the time of their death. However, the damages recoverable in these cases was limited to economic monetary losses the person suffered after the injury but before their death. These economic damages that could be recovered included medical bills, lost wages and punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived. However, recoverable damages in such cases did not include damages for pre-death pain, suffering, or disfigurement.
However, S.B. 447 alters C.C.P. Section 377.34 and changes this rule. Now, it will no longer exclude non-economic damages and allows a decedent’s personal representative to recover damages for a decedent’s pain, suffering or disfigurement if the cause of action or proceeding was granted a preferential trial date before 2022, or if it was filed between January 1, 2022, and January 1, 2026.
Now that S.B. 447 has passed, C.C.P Section 377.34 includes language stating that: “in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to [C.C.P.] Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.”
WHY DOES S.B. 447 MATTER?
The effect of this change of law is that it adds an important category of damages that can be recovered thereby potentially increasing the amount of damages that can be rightfully awarded in survival actions.
For some background, S.B. 447 was introduced by California State Senator John Laird. Proponents of S.B. 447 supported it for multiple reasons. California was in the clear minority, as most other states in the country have allowed for recovery of non-economic damages for pain and suffering even after a plaintiff dies. In fact, California was only one of 5 states that precluded a decedent’s personal representative or successor in interest from recuperating non-economic damages. This prior legislation in California gave Defendants in lawsuits a reason and incentive to delay trials because they would not have to pay pain and suffering damages if a plaintiff in a lawsuit died before a verdict at trial could be reached. In other words, defendants would often take every opportunity to delay trials hoping that a plaintiff would die before trial. Further, supporters of S.B. 447 argued that limiting the damages was arbitrary and manifestly unjust and unfair. As such, S.B. 447 represents an important change in the California law.
HOW DOES S.B. 447 APPLY?
The new provisions of S.B. 447 will apply if: 1) the action is granted preference pursuant to C.C.P. Section 36 before January 1, 2022; or 2) the action is filed on or after January 1, 2022, and before January 1, 2026.
S.B. 447 applies to medical malpractice actions, but the MICRA cap still applies to non-economic damages for pain and suffering damages in a medical malpractice claim.
S.B. 447 does not impact elder abuse (EADACPA) cases (which permit for pre-death pain and suffering damages up to $250,000 in enhanced remedies actions). On the other hand, it does apply to other types of claims that may affect elders.
S.B. 447 applies to all other personal injury and employment cases.
HOW MIGHT S.B. 447 AFFECT ME?
If you have a case involving a plaintiff that is eligible for C.C.P. Section 36 preference, you and/or your attorney should consider applying for the preference as soon as possible including on an ex parte basis if possible, so that it is granted before January 1, 2022.
If you have a case that can wait to be filed until after January 1, 2022, you and/or your attorney should consider that option.
AN IMPORTANT NOTE ABOUT S.B. 447: A plaintiff who recovers damages for pain, suffering, or disfigurement between these new specified dates must provide the Judicial Council with a copy of the judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages and a cover sheet detailing the date the action was filed, the date of the final disposition of the action, and the amount and type of damages awarded, including economic damages and damages for pain, suffering, or disfigurement. The reason for this requirement is that on or before January 1, 2025, the Judicial Council must submit a report to the legislature detailing the information received for all judgments, consent judgments, or court-approved settlement agreements obtained from January 1, 2022, to July 31, 2024.
You can find S.B. 447 here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB447
