We addressed this bill in July 2022 when it was passed by the New York Legislature last year and sent to the Governor for signature. The bill would add wrongful death compensation for the value of “grief or anguish caused by a decedent’s death,” a type of damages never before found in New York law. Under current law, and for the past 176 years, the measure of damages has been the loss of economic support or other benefit resulting from the decedent’s death. The law would expand the statute of limitations and would apply retroactively to every pending lawsuit.

In an Op-Ed to the New York Daily News on January 30, 2023, Governor Hochul made clear her objections to the Act as written, while agreeing with the plaintiffs’ bar on the need to change existing law:

The question is how. Last year, the Legislature passed a bill, the Grieving Families Act, that would effectuate a complete overhaul of the wrongful death framework. It would dramatically expand beneficiaries, categories of damages, and the statute of limitations.

Experts have highlighted concerns that the unintended consequences of this far-reaching, expansive legislation would be significant. It is reasonable to think that the legislation as drafted will drive up already-high health insurance premiums, adding significant costs for many sectors of our economy. . . . This is a question that would benefit from careful analysis before, not after, passing sweeping legislation.

The Governor further commented that what was missing in the Legislature’s process “was a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the state’s complex health care system.” The Op-Ed continued:

We must fully understand the impacts of potential changes on small businesses, families, doctors and nurses, struggling hospitals in underserved communities, and the overall economy to ensure that undesired consequences don’t overshadow the good we can do for grieving families.

While this is a breath of fresh air from an unexpected source, we note Governor Hochul’s total omission of the potential effect on liability insurers, the premiums needed to meet these expanded liabilities, and the effect on the future availability of insurance for New York businesses and individuals. Perhaps that was a step too far for the Governor.

For over one hundred years, New York law has restricted wrongful death damages to pecuniary losses sustained by a decedent’s family. The plaintiff’s bar has succeeded in persuading both houses of the State Legislature to pass the “Grieving Families Act” to add elements of grief or anguish caused by a decedent’s death. The amount to be awarded would be at the discretion of the jury, with no cap set in the legislation. It is now up to Governor Kathy Hochul, to sign the bill, or veto it, possibly with recommendations for changes. It is expected that opposing sides, such as the insurance industry, will be consulted by the Governor.

Specifically, the Act would add as compensation for wrongful death a value for the “grief or anguish caused by a decedent’s death, and for any disorder caused by such grief or anguish” and “the loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death.” Such damages have never been part of New York wrongful death claims and would greatly increase exposures for defendants and insurers if the Act becomes law in its present form. Among other things, the Act would provide compensation for the wrongful death of a child or other non-income producing family member. Under existing law, those claims have had relatively low pecuniary value. The Grieving Families Act takes its name from its aim to provide monetary damages because of grief suffered at the loss of a family member, even in the absence of pecuniary loss.

As written the Act would expand the statute of limitations from the present two years to three and one-half years from the decedent’s death. If signed by the Governor, the Act would take effect immediately and would apply retroactively to all pending actions, as well as actions commenced on or after that date.

We shall report further on any action by Governor Hochul.