New Wrongful Death Law in California
California now joins some other states in allowing money damages for pain, suffering and or disfigurement in wrongful death actions, effective January 1, 2022. This is very good news for families who suffered the loss of a loved one due to the negligence or other wrongful act of another.
Prior to January 1, 2022, when someone died, referred to as the decedent, suit could be brought in California for certain damages but NOT for pain, suffering and or disfigurement.
Some other states permitted suits for pain, suffering and or disfigurement, but not California.
California Code of Civil Procedure (CCP) Section 377.34 now states in relevant part:
“[I]n 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 Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.” CCP Sect 377.34(b)
What this means is that a wrongful death lawsuit (usually referred to as a Civil Complaint for money damages) may now include a claim for damages for pain, suffering and or disfigurement (e.g., a scar or anything spoiling the appearance of someone). This new code section (often called a law) goes into effect January 1, 2022, but it does NOT apply to any action or proceeding (i.e., any lawsuit or civil complaint) filed in court before January 1, 2022, except when a preference pursuant to CCP Section 36 was granted. There are other rules and limitations to consider that are set forth in CCP Section 377.34, which you may review yourself or contact us for an absolutely FREE consultation.
Regarding timing, if there was an injury before January 1, 2022 and the heirs or attorneys for the heirs actually filed suit before January 1, 2022, the claim could NOT include damages for pain, suffering and or disfigurement, subject to an exception discussed below. But if the wrongful death incident occurred anytime, that is before or after January 1, 2022, but the action or proceeding (e.g., the civil complaint) was not filed until January 1, 2022 or later, then the suit (so long as it complied with the California statute of limitations – that is, the time deadlines to file suit for damages) could include a request for damages for pain, suffering and or disfigurement.
The one exception is “if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022…”CCP Sect 377.34(b). This exception applies when certain conditions are met, such as when a party to the suit is over 70 years of age and that party’s health is such that a preference is necessary to prevent prejudicing that party’s interests in the subject litigation. In such circumstances the court shall or may, depending on the circumstances, permit a filed suit to be granted a preference ( that is, to be expedited) on the court’s trial calendar so that it is given a trial date and tried before older cases that were filed before it. In general, such cases granted preference are set for trial not more than 120 days from the date the motion for preference was granted. If you have a further interest in CCP Sect 36, you simply may click here.
Strategy: If a wrongful death suit was filed before January 1, 2022, could it now be dismissed and re-filed after the new law became effective (that is, on or after January 1, 2022, assuming still within the California statute of limitations) to include damages for pain, suffering and or disfigurement?
Our firm has several open and active wrongful death cases and because suit was not filed before January 1, 2022, we now are legally permitted to amend our claims for the family of the decedent to also include damages for pain, suffering and or disfigurement caused the decedent.Pain, Suffering and Disfigurement Damages in Wrongful Death Cases
Of course the amount of damages for pain, suffering and or disfigurement will depend on many factors, including how long did the decedent live and suffer post incident, what actually occurred and what is the supporting evidence.
When the decedent passes within a few minutes or an hour of the incident causing death, the damages will usually be much less that when a decedent survives days, weeks or months.
To help prove this, photos, videos, keeping a diary or clear records and getting the cooperation of witnesses (including hospital staff, including doctors and nurses; family and friends; etc.) may prove invaluable.
If a member of your family was killed in an accident, here is how you can get FREE advice and help with your wrongful death claim to recover all your money damages.
Please call us at 1-866 INJURY 2 or 818-222-3400 (after hours dial “1”) or 310-279-5255 or click here to contact us for your FREE consultation and case evaluation.
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