News & Insights

Recent Posts

Covid-19: Assessing the Legal Risk of Infectious Diseases

WSHB Employer Alert: FFCRA and DOL Regulations 4.2.20

Employment Practices Consultation & COVID-19

It’s a No-Win Situation: The Perils Facing Hospitals Due to the Coronavirus

COVID-19 Employer Alert: Summary of the CARES Act

COVID-19: New York Malpractice Law Alert

COVID-19 Employer Alert: Enactment of Families First Coronavirus Response Act (FFCRA)

WSHB Co-Founder Stephen Henning to Announce the Winner of CLM's 2020 Outside Counsel Professional of the Year Award

WSHB Partner Robert Hellner Shares Mediation Tactics at CLM’s 2020 Annual Conference

Risk Transfer and Contractual Indemnification – Who Gets Left Holding the Bag?

New Developments in Challenging Certificates of Merit — Seeking Dismissal for Failure to Concurrently File Certificate with the Original Petition

Seven Habits that Define a Highly Effective Claims Team

Social Media Do's and Don'ts

WSHB Partner Kelly Waters Named to NJBIZ's 2020 Best Fifty Women in Business List

WSHB Names Andrew S. Kessler as Managing Partner of the Firm's Philadelphia Office

WSHB Employment Alert: California Law Banning Arbitration Agreements Temporarily on Hold

Sam McDermott on the Dos and Don’ts of Construction Project Termination

Full Disclosure! Insurer Beware: Colorado’s New Automobile Policy Disclosure Law Has Teeth!

Andrew S. Kessler Named Legal Counsel for Northeast Community Center for Behavioral Health

WSHB Elevates Ten Partners to Defined Equity Status

Eleven WSHB Attorneys Elected Into Partnership

Eighteen Attorneys Elected to WSHB Senior Counsel

Supreme Court Allows Suit Over Website Accessibility

Strategies for Defending Legionella and Mold Claims

Residential Revolution

Time Limit Demand Issues Arrive in North Carolina

Temp Agency Absolved of Liability in Hotly Contested Action

Alternative Fee Agreements and Construction Issues: Oil and Water or Perfect Pairing!?

WSHB's Graham Miller Helps Demystify Construction Claims in the Pacific Northwest

WSHB Partner Janice Michaels Named to The Best Lawyers in America© 2020 List

One Bad Apple: Navigating through Sexual Battery and other Intentional Torts

Leading Construction Litigator Cynthia Tari Joins WSHB's Dallas Office

WSHB’s Philadelphia Partner Secures Summary Judgment in Catastrophic Premises Liability Matter

WSHB Welcomes New Partner Andrew Kessler

New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers "SWEAT"

Renowned Litigator Jason Williams Joins WSHB's Nevada Office

Litigator Richard Young Joins WSHB's Nevada Office

Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation Suit

17 WSHB Lawyers Honored as 2019's Rising Stars

Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to Stand

WSHB’s Jason Klein Breaks Down the Good, the Sad and the Funny Sides of Claims

Litigating Sexual Battery and Other Intentional Torts: Navigating the One Bad Apple in Medical Negligence

WSHB Partner Michelle Arbitrio to Moderate Panel on Insurance and Risk Management in the Age of Mass Shootings

Girl on Fire: The Price of Pursuing the Truth in the #MeToo World

Pragmatic Issues on Settlement Versus Trial for Legal Malpractice Cases

A Withering Assault

The Natural Progression of Natural Disasters

Nevada’s Governor Signs Chapter 40 Reform Bill

WA Condo Law Changes Hope to Curtail Frivolous Defect Lawsuits and Stimulate Production

WSHB Co-Founder Stephen Henning Steps Into the Spotlight at this Year's West Coast Casualty Seminar

Professional Liability Expert Weighs In On Protecting Your Practice From Opioid Doc Arrest Fallout

Penalties, Punitives, and Granny Cams: The Escalating Lure of Elder Abuse Litigation

Are Structured Settlements Still Relevant

Game Changing Trends Affecting Construction

He's Not My Guy: The Joint-Employer Doctrine

WSHB Case Update: DOL Proposes Increase to Minimum Salary Threshold

WSHB and DWF Announce Exclusive Association

The Coastal Fire and What it Portends for the California Fire Season Ahead

Stephen Henning Named a Finalist for RISE 2022 Mentor of the Year Award

New Agreement on MICRA Averts Ballot Box Uncertainty in November

Who to Pay? Florida Court Weighs in on Claim Payments to AOB and Insureds

California’s New Survival Statute Increases Complexity, Value, and Costs of Survival Actions

January 21, 2022

A significant change in California law regarding survival actions took effect on January 1, 2022. All plaintiffs who file civil actions on or after this date are now permitted to recover damages for a deceased party’s pre-death pain, suffering, or disfigurement. California is the 46th state to permit this form of recovery and joins the majority in modifying its survival statute. Going forward, the value of survival actions and attendant costs of defending them will increase.

As background, a survival action is a lawsuit brought by a decedent’s successors or heirs for the recovery of damages that the decedent would have had from the time of injury up until death. If an injured party died before the case resolved, any damages arising from pain, suffering, or disfigurement were extinguished and no longer recoverable. In addition to the ability to seek punitive damages, the decedent’s damages, pursued by his or her successors or heirs, were limited to economic damages like lost wages and medical expenses. Arguably, despite the availability of punitive damages which are not available in wrongful death cases, this outcome unfairly punished the plaintiff for injuries allegedly caused by the defendant.

The California Code of Civil Procedure section 377.34 as amended by Senate Bill 447 was co-sponsored by the Consumer Attorneys of California and the Consumer Federation of California who supported the bill because of the perceived “death discount” afforded when a plaintiff died before the resolution of his or her action under the prior statute. Plaintiff attorneys have long claimed that this incentivized the defense to employ bad faith delay tactics in case resolution.

Opponents of this amendment argue that because California already authorized successors and heirs to sue for punitive damages, the new law will allow them to effectively double dip resulting in markedly higher verdicts. As such, the new law does not carry out the purpose of “balancing the scales of justice,” but rather creates a new avenue to achieve larger awards. A likely practical consequence will be an increase in insurance premiums which will directly impact the out-of-pocket costs for individuals and businesses.

Interestingly, these conflicting positions will be critically examined by the Legislature through the reporting requirement of the amendment. Plaintiffs who recover under this section must report their awards to the Judicial Council within sixty (60) days of case resolution. This information will be collected and reported to the California Legislature. The law expires on January 1, 2026 at which time the California Legislature will amend or extend it.

The attorneys at WSHB are committed to monitoring the impact of this change and will keep all interested parties updated.


Privacy Policy      |      Site Map

© 2022 Wood Smith Henning & Berman LLP

Subscribe to our mailing list

* indicates required