Pain and Suffering Damages Now Permitted in California Survival Actions

Schnader Harrison Segal & Lewis LLP
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Schnader Harrison Segal & Lewis LLP

Effective January 1, 2022, pain and suffering damages in California will be allowed for wrongful death actions filed between January 1, 2022 and January 1, 2026 and in preferentially set actions filed before January 1, 2022. California has now joined 45 other states, at least temporarily, in allowing pain and suffering damages in survival actions.

Senate Bill 447 was signed into law on October 1, 2021, amending California Code of Civil Procedure Section 377.34 regarding the types of damages allowed in survival actions. Prior to enactment of S.B. 447, pain, suffering, and disfigurement damages were barred in cases brought by a decedent’s personal representative or successor in interest. Given the passage of S.B. 447, such pain and suffering damages are now permitted for wrongful death matters filed during the four year window between January 1, 2022 and January 1, 2026, and in cases where trial preference was granted pursuant to Section 36 prior to January 1, 2022 and where a subsequent wrongful death action is brought upon plaintiff’s passing.

Additionally, although S.B. 447 currently has a sunset provision of January 1, 2026, this may change. Under S.B. 447, plaintiffs are required to send data regarding damages awarded in these wrongful death cases between January 1, 2022 and January 1, 2025 to the Judicial Counsel, who in turn will transmit a report detailing the information collected regarding damages recovered by plaintiffs to the Legislature. Presumably, the Legislature will then analyze this information to determine whether to enact further legislation permitting pain and suffering damages to extend to wrongful death cases filed beyond January 1, 2026.

For the full text of the bill and the amended Section 377.34, please see: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB447.

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