New California Law Allows Pain and Suffering Damages to Survive Someone’s Death
People sometimes wonder what happens to a personal injury claim when the injured person dies during the case or before a lawsuit is even filed. In California, a personal injury claim does not die with the person. Instead, the claim survives and belongs the person’s estate. This is pursuant to California Code of Civil Procedure section 377.20, which provides that “a cause of action for or against a person is not lost by reason of the person’s death.”
Because a personal injury claim survives death, this sort of lawsuit is commonly referred to as a “survival” action. The effect is that the estate of the deceased may recover damages that would have been awarded to the personal injury victim had he or she been alive. Notably, a survival action may be brought regardless of the cause of the person’s death. In other words, the injuries that form the basis of the lawsuit do not need to be the cause of the person’s death.
a recent change to the law now allows the estate of the deceased person to recover for the pain and suffering experienced by the personal injury victim prior to his or her death.
In many respects, a survival action proceeds as if the injured person had lived. Historically, a significant difference involved the types of damages that were recoverable. Until recently, California law prohibited a recovery for non-economic damages. Non-economic damages are sometimes referred to generally as damages for pain and suffering. However, a recent change to the law now allows the estate of the deceased person to recover for the pain and suffering experienced by the personal injury victim prior to his or her death. This new development should significantly increase the value of survival actions.
Who Brings or Continues the Lawsuit in a Survival Action?
A personal injury lawsuit is generally filed and continued to the end by the injured person. The injured person is called the “real party in interest” and is the one who owns the claim. When the injured person dies before a lawsuit is finished, someone else must step in. An estate is not a legal entity but is simply a collection of assets and liabilities. As a result, the estate of the injured person cannot initiate or maintain a lawsuit. Galdjie v. Darwish, 7 Cal. Rptr. 178, 188 (Ct. App. 2003). California’s survival statutes, however, provide numerous options of who may do so.
Under California Code of Civil Procedure section 377.30, a survival lawsuit may be “commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Decedent is a legal term for the deceased person). Similarly, section 377.31 allows a case to be “continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” A personal representative of the decedent is often an administrator or executor.
However, there may not be a personal representative if probate of the estate has been completed or the estate was not probated. In that case, the survival action may be brought and maintained by the successor in interest of the decedent. The decedent’s successor in interest would be the person or persons named in the decedent’s will or who would be entitled to inherit from the decedent if he or she died without a will. Cal. Civ. Proc. Code §§ 377.10, 377.11.
Who Receives the Damages Award in a Survival Action?
California Code of Civil Procedure section 377.30 states, “[a] cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest.” This means that even if the lawsuit is prosecuted by a personal representative, the personal representative does so on behalf of the estate and its beneficiaries. Any damages awarded ultimately pass to the injured person’s successors in interest the same as other property would pass by will or the laws that govern when a person dies without a will.
As an example, assume a person is hurt in a car accident due to the negligence of another driver. Assume further that the injured person dies before filing a lawsuit and that the person died with a will that left everything to a spouse. The personal representative of the decedent may bring and prosecute the lawsuit until completion. Any award of damages would pass through the estate to the spouse, just like other property and assets under the will.
What Damages Were Recoverable Under the Old Law?
The prior version of California Code of Civil Procedure section 377.34 permitted a recovery for “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived.” According to the California Supreme Court, the effect of section 377.34 was that the estate could recover economic damages incurred before death, such as medical expenses and lost earnings, as well as punitive damages. County of Los Angeles v. Superior Court, 981 P.2d 68, 75 (Cal. 1999).
under the old law, these damages died with the injured person even though that person endured pain and suffering prior to death.
However, section 377.34 also stated that these damages “do not include pain, suffering or disfigurement.” The reference to “pain, suffering and disfigurement” has been interpreted to generally mean non-economic damages. Williamson v. Plant Insulation Co., 28 Cal. Rptr. 2d 751 (Ct. App. 1994). According to California Civil Jury Instruction No. 3905A, non-economic damages include:
- loss of enjoyment of life
- physical impairment
- emotional distress
- other damages with no fixed standard to determine the amount
In a personal injury lawsuit, under the old law, these damages died with the injured person even though that person endured pain and suffering prior to death. The result was that a personal injury claim was not as valuable after the death of the injured person as it would have been had he or she remained alive.
Exception for Federal Civil Rights Claims
The ban on pre-death pain and suffering under California state law has not always been applied to all types of claims in all courts. One important exception was a federal civil rights claim brought in federal court. Commonly, this would include a lawsuit alleging excessive force against a police officer in violation of a person’s Fourth Amendment rights.
In 2014, the Ninth Circuit Court of Appeals in Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014), held that the prohibition against pain and suffering under California Code of Civil Procedure section 377.34 was inconsistent with the deterrent purpose of section 1983 civil rights lawsuits. As a result, pre-death pain and suffering damages were recoverable in a section 1983 lawsuit where the violation of federal law caused the decedent’s death. For example, if a police officer wrongly shot and killed someone, it would be permissible to award damages for the pain and suffering experienced by the person from the time he was shot until the time of death.
What Damages Does the New Law Allow?
To many, it seemed horribly unfair to treat a case as if the injured person had not suffered during life simply because the injured person passed away before the end of a lawsuit. Arguably, this created a windfall to the wrongdoer whenever his victim died, whether as a result of the wrongdoer’s misconduct or any other cause prior to the final disposition of a case. In fact, part of the rationale for the federal civil rights lawsuit exception was that a police officer intending to wrongly punish a criminal suspect would be better off killing the suspect than using non-lethal excessive force.
Thanks to the hard work of many, section 377.34 was recently amended to avoid such an unjust result in many cases under California state law, including a negligence lawsuit arising from a car accident, for example. Under the amended version of California Code of Civil Procedure 377.34, non-economic damages, including pre-death pain and suffering, may now be awarded to the estate in a survival action. The law was signed by Governor Newsom on October 1, 2021. It expressly allows the estate to recover for the “pain, suffering and disfigurement” experienced by the injured person prior to death.
One noteworthy aspect of the new bill is that the allowance for pain and suffering applies only to lawsuits filed on or after January 1, 2022, but prior to January 1, 2026. For lawsuits filed before January 1, 2022, the court may grant a preference pursuant to California Code of Civil Procedure section 36, which would also allow for the recovery of pre-death pain and suffering.
It expressly allows the estate to recover for the “pain, suffering and disfigurement” experienced by the injured person prior to death.
This preference may be helpful if a lawsuit must be filed prior to January 1, 2022, to avoid a statute of limitations defense, which means the claim was not timely filed. Examples of grounds for preference under section 36 may include that a beneficiary of the estate is over 70 years of age or is unlikely to survive more than six months.
The long-term future of this new law is uncertain. The statute requires plaintiffs who recover pain and suffering damages between January 1, 2022, and January 1, 2025, to submit to the Judicial Council (the rulemaking arm of the California courts) certain information about the case, including the type and amount of damages awarded. The Judicial Council will then pass this information on to the California Legislature. Presumably, the Legislature will then determine whether pre-death pain and suffering damages should remain recoverable in a survival action. The one thing that is certain is that the value of survival actions has increased dramatically under the new law.
Contact One of Our Monterey Personal Injury Attorneys to Discuss These Important Changes to the Law
After the loss of a loved one, you have more than enough to deal with. The personal injury attorneys at the Piccuta Law Group can navigate the applicable laws, help determine your right to a recovery and advise you of your options. We have decades of experience handling personal injury cases, including those in which the injured person has tragically passed away. One of our experienced personal injury attorneys is available now to discuss your potential case and provide a consultation at no cost. Contact us today.
About the author: The content on this page was written by California personal injury attorney and wrongful death lawyer Charles “Tony” Piccuta. Piccuta graduated with honors from Indiana University-Maurer School of Law in Bloomington, Indiana (Previously ranked Top 35 US News & World Report). Piccuta took and passed the State bars of Arizona, California, Illinois and Nevada (all on the first try). He actively practices throughout California and Arizona. He is a winning trial attorney that regularly handles serious personal injury cases and civil rights lawsuits. He has obtained six and seven figure verdicts in both state and federal court. He has been recognized by Super Lawyers for six years straight. He is AV Rated by Martindale Hubble. He is a member of the Consumer Attorneys of California, American Association for Justice, National Police Accountability Project, Arizona Association of Justice, and many local county and City bar associations.
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