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Law Offices of Ochoa & Calderon Riverside Workers' Compensation Attorneys

Pain and Suffering Damages in Wrongful Death/Survival Action Cases

Helpless, hurt, depressed young man feeling completely crushed, sitting outside on a cold day, grieving his fate

Wrongful death claims are claims brought by the families of deceased accident victims to seek compensation for the harm they suffered due to the death–loss of companionship, funeral expenses, etc. Wrongful death plaintiffs cannot seek damages on behalf of the deceased accident victims, such as their medical bills or loss of earnings. However, a family member serving as the representative of the estate can bring a survival action for damages the victim would have been able to seek had they survived, but until recently, survival actions did not permit the collection of non-economic damages such as pain and suffering. Families were thus left without recourse for the pain, suffering, and other emotional distress their deceased loved one suffered as a result of someone else’s negligence.

A new California law fixes that inequity. SB 447, signed into law and effective January 1, 2022, allows a personal representative or successor in interest to recover non-economic damages that the decedent would have been able to recover had they survived the accident. Families can now seek damages for the pain, suffering, and disfigurement experienced by their loved one from the parties that caused their demise.

History and Purpose of SB 447

It is common to think of a fatal accident as one in which the victim suffers an immediate or near-immediate death, but sadly that is not always the case. An accident victim might suffer for hours, weeks, or even years before succumbing to an injury brought on by a car or truck crash, fall, or heavy machinery malfunction. During that time, the accident victim can undergo tremendous pain and suffering, which can be almost nearly as unbearable for the family members helpless to ease their loved one’s suffering. SB 447 was passed with the idea in mind to account for this suffering and make sure liable parties are held more fully responsible for the harm they caused.

SB 447 was introduced on February 16, 2021. It passed the legislature on September 9th, 2021, and was signed by the Governor on October first. The law by its terms became effective on January 1, 2022.

SB 447 amended section 377.34 of the California Code of Civil Procedure. California law had already recognized “survival” actions, which allowed surviving family members to pursue their loved one’s personal injury claim even though the victim had died. Before SB 447, however, recovery in these situations was limited to the victim’s financial losses (medical bills, lost wages), plus punitive damages if applicable. Now, CCP 377.34 allows plaintiffs in these actions to recover monetary damages for the pain, suffering or disfigurement experienced by the deceased.

As callous as it may seem, the old law gave insurance companies an incentive to deny and delay valid claims and use legal tactics to push back a trial date as late as possible. If the victim happened to die before the trial, then “pain and suffering” damages were off the table and the defendant’s financial exposure was considerably less. SB 447 takes away that incentive and removes any “windfall for the wrongdoer.”

New Law Is for a Limited Time Only

With the passage of SB 447, California joins the majority of states in helping family members approach a fuller measure of justice when they lose a loved one due to another’s negligence or wrongful misconduct. The California law, however, is only effective for claims brought between January 1, 2022, and December 31, 2025. As of January 1, 2026, the law expires unless further action is taken to make it permanent. This sunset provision can be seen as a compromise between factions supporting and opposing the new law. While the law is in effect, every wrongful death award will get reported to a government agency, with the idea that the legislature will review these reports before the law’s expiration and decide whether to make it permanent, amend it or let it lapse.

Fighters for Justice in Southern California

If you lost a loved one in a California car or truck accident, slip and fall, workplace accident or other fatal accident, get help recovering maximum compensation by contacting the skilled and experienced personal injury lawyers of Ochoa & Calderón at 951-901-4444 in Riverside or 844-401-0750 throughout Southern California for a no-cost consultation.

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