Despite opposition from a coalition of 13 organizations, a proposed bill that would expand pain and suffering damages was approved by the Senate Judiciary Committee last week.
If enacted, SB 447 would change existing California law to allow non-economic pain and suffering damages in survival actions.
“Existing law prevents such recovery but allows punitive and economic damages,” said Kyla Christoffersen Powell, president, and CEO of the Civil Justice Association of California (CJAC).
CJAC is among the 13 organizations that signed an April 14 letter alleging that if SB 447 were enacted, it would give rise to increased costs to consumers and more litigation clogging California courts.
“This coalition respectfully requests the bill be amended to apply on a temporary basis only to cases delayed by court closures due to the COVID-19 pandemic,” wrote Jaime Huff, vice president and counsel of CJAC’s public policy, in the letter.
As of April 24, California had 3,627,885 confirmed cases of COVID-19, resulting in 60,135 deaths, according to the state’s coronavirus dashboard.
Introduced by Senator Laird in February, SB 447 allows damages for a deceased individual’s pain, suffering, or disfigurement to be recovered in an action brought by that person’s personal representative or successor in interest if the cause of action was before January 1, 2026.
“The bill is a massive expansion of damages and could affect all industries subject to personal injury actions in California,” Powell told the Southern California Record.
During the hearing on April 20, SB 447 was amended to include a four-year sunset.
“Because the amendment is worded to apply to cases “accrued” before January 1, 2026, it will mean that its application can extend out far beyond 2026,” Powell said.
Laird, a Santa Cruz Democrat, noted during the hearing that the sunset will allow time to gauge the bill’s impacts.
“CJAC anticipates that with the sunset the bill will easily pass from the Senate to the Assembly, but we will continue to fight for the sunset language to be narrowed further,” Powell said.
Members of the coalition include the Personal Insurance Federation of California, the Cooperative of American Physicians, the Voice of California Dermatology, the National Association of Mutual Insurance Companies, and the California Business Properties Association.
“The impact of allowing recovery for pain and suffering damages in all survival lawsuits will be another vague, subjective and unlimited source for larger awards and settlements in personal injury cases, which will enable plaintiffs’ lawyers, who typically get a percentage of any settlement or judgment, to collect more fees,” Huff stated in the letter.
The letter opposing SB 447 further states that the change is not necessary because current law permits preference filing for parties who have serious health risks.
“Since California law entitles plaintiffs whose health may prevent them from making it through trial to have preferential treatment, it is unnecessary to make a permanent change to longstanding policy for purposes of a temporary court backlog,” Huff wrote. “This bill makes a permanent and detrimental change in the law for a temporary circumstance.”
SB 447 is pending action on the Senate floor.
“Non-economic damages are hedonic, which can include pain, suffering, emotional distress, anxiety, depression and all of these other things that come along with being hurt to a point where you are limited in the way you go about living as a result of somebody's fault,” said Ilan Heimanson, a plaintiff personal injury attorney with Heimanson & Wolf in Los Angeles.