On June 6, 2023, Senate Bill S6636, the proposed bill known as the Grieving Families Act, passed the New York State Senate. This follows just days after the New York State Assembly passed its own version of the law, Assembly Bill A6698. This is the second version of the Grieving Families Act to be passed by the Legislature. A first version was passed during the last Legislative Session, but was vetoed by Governor Kathy Hochul due to concerns that it would have increased insurance burdens on families and small businesses, further strained healthcare workers and institutions, including hospitals in underserved communities, and confused judges, juries, and litigants who, in some cases, were already years into litigation. While it remains to be seen if Governor Hochul will sign this newly revised version of the Grieving Families Act into law, practitioners should be aware of the new changes this law would bring about.
The bill’s stated purpose, like the previous version, is to “permit the families of wrongful death victims to recover compensation for their emotional anguish.” Under the current law, recovery is limited to pecuniary injuries stemming from the decedent’s death to the persons for whose benefit the action is brought, namely, the decedent’s distributees. If this new bill is signed into law, it will amend, and potentially repeal significant aspects of, New York Estates, Powers, and Trusts Law Sections 5-4.1 and 5-4.3 through 5-4.6, which currently govern wrongful death cases.
First, if enacted, the Act will extend the time to file a wrongful death action from two years to three years from the date of the decedent’s death. This is a change from the previous version of the Act, which would have allowed actions to be brought within three years and six months of the decedent’s death.
Second, the Act will allow for family members to receive compensation for non-economic losses if a tortfeasor is found liable for causing a death, and not just pecuniary losses. The Act specifically authorizes recovery for “grief or anguish caused by the decedent’s death.” The prior version’s allowance for recovery for “any disorder caused by such grief or anguish” has been removed from the current version of the bill passed by the Legislature. The Act also permits recovery for “loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death,” none of which are compensable items of damages under the current law.
Third, the passed bill greatly expands the class of persons who may recover damages for wrongful death. Under current law, only distributees of the decedent may recover damages. The Act permits “close family members” to recover damages. It permits the finder of fact to determine which persons are “close family members” of the decedent, “based upon the specific circumstances relating to the person’s relationship with the decedent.” In a slight change from the vetoed version of the Act, the current bill limits “close family members” to spouses or domestic partners, issue (which presumably includes children and grandchildren), foster-children, step-children, step-grandchildren, parents, grandparents, step-parents, step-grandparents, siblings, and “any person standing in loco parentis to the decedent.”
Finally, the Act, if signed into law by the Governor, will “apply to all causes of action that accrue on or after July 1, 2018, regardless of when filed.” This is a change from the vetoed version of the Act, which would have taken effect immediately and applied to all pending and future actions
As can be seen, while the Grieving Families Act recently passed by the Legislature is slightly more limited than the version vetoed earlier this year, it still greatly expands the time in which to bring a wrongful death action, as well as the damages which may be recovered and the class of persons who may recover those damages. In addition, it still has retroactive effect, stretching back to deaths which occurred in mid-2018, despite the fact that some cases will already be years into litigation. Accordingly, it is likely that this Act will still, as noted by Governor Hochul with respect to the previous version, increase insurance burdens, further strain healthcare workers and institutions, and confuse judges, juries, and litigants in pending actions.
We will continue to provide updates, including whether Governor Hochul signs or vetoes the Grieving Families Act, in the coming weeks.
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