New York Vetoes Grieving Families Act

On January 31, 2023, New York Governor Kathy Hochul vetoed the proposed Grieving Families Act (the “Act”), which aimed to reshape the State’s wrongful death statute. The proposed legislation would have expanded the class of plaintiffs allowed to recover in wrongful death suits to any “close family members,” allowing recovery for grief, sympathy, and loss of consortium. In a statement released on January 30, 2023, the Governor acknowledged the emotionally wrought dimensions of the Act. Still, she ultimately concluded that New York legislators had failed to seriously consider the economic implications of “this far-reaching, expansive litigation.”

The Act, passed at the end of the legislative session and which the Assembly and Senate approved and voted on the same day, aimed to reform the current law established in 1847.[1] The current statute sets forth the financial compensation scheme for families whose loved ones are the subject of wrongful death suits. The Act aimed to increase recoverable damages in two fundamental ways.

First, the Act would have expanded the class of plaintiffs entitled to recover damages by including anyone deemed to have a “close” relationship with the deceased. Specifically, the Act provided:

surviving close family members, which may include, but are not limited to, spouse or domestic partner, issue, parents, grandparents, stepparents, and siblings. The finder of fact shall determine which persons are close family members of the decedent under this section based upon the specific circumstances relating to the person’s relationship with the decedent.

Second, the Act would have permitted claimants to recover not just economic damages, which are currently allowed, but also damages for grief, sympathy, and loss of consortium. The Act did not include a cap on recoverable damages and would have applied retroactively to all pending wrongful death lawsuits in New York. In addition, it would have extended the current two-year statute of limitations by eighteen months.

Advocates of the Act argued that the current law restricts recovery to amounts the victim would have financially contributed to certain family members left behind. Thus, the loss of family members with limited income, such as retirees or children, is limited or not recoverable under current law. Advocates pointed to the forty-eight other states that have passed similar legislation allowing recovery for grief and loss of a loved one.

On the other hand, detractors from the insurance industry and business and trade associations pointed to the fact that the Act, unlike counterparts in other states, failed to cap recovery, mandating an inevitable spike in medical insurance and liability premiums for consumers. For example, an analysis by the Seattle-based actuarial firm Milliman concluded that the Act would increase general and auto liability insurance premiums by over 11%, or an estimated $2.14 billion, for residents and businesses.

Governor Hochul’s statement acknowledged these competing interests, agreeing that families suffering from the loss of a child due to an accident, for example, were entitled “to know that the life of their child has value in the eyes of the law.” However, the Governor weighed this against concerns that the Act, as drafted, would have driven up “already-high health insurance premiums, adding significant costs for many sectors of our economy.” She further pointed to the legislature’s hasty passing of the bill, concluding, “[w]e 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.”

From a legal perspective, the Act would have been an obvious boon for the New York plaintiff’s bar, allowing for recovery of a greatly expanded nexus of plaintiffs for each wrongful death suit. In addition, without a cap on damages for grief and loss of a loved one, settlement demands and potential verdicts could reach unprecedented heights leaving the defense bar without a shield against unquantifiable and highly personal emotional losses. Indeed, according to news reports, the New York State Trial Lawyers’ Association was one of the Act’s top supporters.

Conversely, the Act would have potentially glutted the already over-burdened New York court system with new filings if signed into law. This may have given the defense bar settlement leverage as the trial dates for these matters became increasingly remote. In addition, while those with a “close” relationship with the deceased might have been able to file suit, it could have been challenging to demonstrate the validity of these more ambiguous relationships to a jury. The same might be said of the subjective losses for grief and loss of a loved one. Moreover, it could have been years before enough precedent was established to recover on these types of losses reliably.

Regardless, Governor Hochul’s decision appears to leave the door open for New York’s Legislature to draft a more moderate version of the Act, perhaps to expand the class of plaintiffs entitled to recovery to include only parents, for example. The Governor’s statement concludes, “I urge the Legislature to join me in taking a meaningful step forward so that parents who are grieving the loss of their children from accidents can finally receive justice they have been denied for the last 176 years.” In the interim, those on the defense in New York have, at the very least, a temporary moment of repose.

[1] The Wrongful Death Statute is codified in the Estates, Powers and Trust Law. EPTL 5-4.4(a)