On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a global pandemic. First reported in 2019 in Wuhan, China, the disease spread quickly to every corner of the world. Even a group of Belgian researchers in remote Antarctica recently tested positive for a variant of COVID-19, known as the Omicron Variant. As of January 4, 2022, COVID-19 disease has claimed almost 5.5 million lives worldwide, with over 730,000 deaths in the U.S. alone.

Not only has COVID-19 divided society over issues of masking and vaccination, but it has also disrupted business operations in many places as governments implemented mandatory shut downs in an effort to contain the spread of the disease. California's courts shut down for many months, with judges continuing or vacating trial dates far into the future. Litigants suddenly found their cases bogged down in a system that was already painfully slow. They were now unable to get their cases in front of either a judge or jury. Moreover, the defense bar and their insurance companies, in many instances, seized the opportunity to come up with ways to further delay resolving cases.

During the shut down and delays, many individuals in California who had personal injury claims died, whether from COVID-19 or some other injury or illness. Some were elderly and simply died of old age waiting for their courts to reopen for their cases to be heard. This included litigants who were otherwise entitled to a preferential setting under Code of Civil Procedure Section 36. 

Under the law in existence in California at that time, when these individuals passed away, so did a significant portion of their damages claims. Then-existing Civil Code Section 377.34 - California's "survival" statute - barred a deceased person ("decedent") from recovering any damages for pain and suffering or disfigurement. In most personal injury cases, pain and suffering is the largest components of an individual's damages.

Thus, because of the shut down (however necessary it may have been) and the delaying tactics of the defense, defendants essentially received what amounted to a "death deduction" against their liability. This situation threatened to repeat itself if the pandemic worsened and new shut downs were ordered.

Recognizing this dilemma, California Assemblyperson John Laird (D of Santa Cruz) proposed SB 447, which was supported by the Consumer Attorneys of California and the Consumer Federation of California, among others. Unsurprisingly, the bill was opposed by the defense bar, insurers, and tort reform groups like the Civil Justice Association of California. Notwithstanding this opposition, SB 447 passed the California Legislature and was signed into law by Governor Gavin Newsom on October 1, 2021.

What does SB 447 do? SB 447 amends Civil Code Section 377.34 to permit decedents to recover damages for the pain and suffering and disfigurement they endured prior to their passing. This much-needed enactment brings California into line with a majority of states who already allowed such damages. However, it is important to note some restrictions that were built into the new law as it wound itself through the legislative process.

First, the statute only applies to actions which had preference granted under Code of Civil Procedure Section 36 or actions that are filed from on or after January 1, 2022 and before January 1, 2026.

Second, the statute does not alter Civil Code 3333.2, which limits "non-economic" damages in medical malpractice cases to $250,000, nor does it alter claims brought under the Elder Abuse and Dependent Adult Civil Protection Act.

In addition, the statute imposes a new requirement on California attorneys. Attorneys who obtain "non-economic" damages on behalf of a decedent must report the damages to the Judicial Council within 60 days and provide a copy of the judgment, consent judgment, or court-approved settlement agreement. The Judicial Council, in turn, must report to the Legislature on or before January 1, 2025 detailing the information it receives.

Although it is subject to these restrictions, SB 447 still represents a major win for plaintiffs. For those cases that had preference prior to January 1, 2022 or cases that fall within the statute's time frame, surviving loved ones will at least be able to tell judges or juries about the pain and suffering or disfigurement the decedents experienced prior to their passing - and obtain compensation for it.

Young Law Group currently represents clients who will benefit from this new change in the law. We are happy to discuss your case with you to see if it qualifies.