The Grieving Families Act, officially known as Senate Bill S6636/Assembly Bill A6698, represents a significant legislative initiative aimed at expanding the number of recoverable damages in wrongful death cases in the state of New York. The bill was introduced in the New York State legislature, which is composed of the New York State Senate and the New York State Assembly. Governor Kathy Hochul, the 57th and current governor of New York, vetoed the bill January 30, 2023, citing concerns regarding the potential impact and practical implications. The bill addresses matters governed by the Estates, Powers, and Trusts Law (EPTL) in New York, specifically relating to the administration of estates, trusts, and powers of appointment. The aim of the bill is to provide legal recourse for wrongful death.
History of the Grieving Families Act
The Grieving Families Act made its debut in the New York State legislature during 2021, with Senator Brad Hoylman and Assembly Member Daniel O’Donnell, both Democrats representing Manhattan, as its sponsors. The bill garnered significant backing and triumphantly cleared the New York State Senate in June 2022, amassing an impressive vote of 57-6. Bolstered by this momentum, the bill advanced to the New York State Assembly, where it received resounding support in July 2022, securing an overwhelming vote of 147-2.
Despite enjoying extensive support, Governor Kathy Hochul delivered a veto to the Grieving Families Act on January 30, 2023. In her veto message, she agreed with the bill’s objectives but raised several concerns. These concerns encompassed the potential creation of open-ended beneficiary groups, the wide-ranging types of damages that might lead to confusion for judges and litigants, the potential for conflicting claims for damages in ongoing legal cases, and the potential rise in insurance costs burdening families and small businesses.
The Revised Grieving Families Act
To alleviate the concerns highlighted by Governor Hochul, Senator Hoylman and Assembly Member O’Donnell reintroduced the Grieving Families Act in May 2023, incorporating significant revisions. The updated bill aims to strike a balance by expanding recoverable damages while addressing the practical implications emphasized by the Governor.
Notably, the revised bill would give New Yorkers three years after a close family member’s death to file a wrongful death lawsuit — up from the current two-year statute of limitations. It refines the eligible classes of individuals entitled to damages, explicitly including spouses, domestic partners, children, parents, grandparents, siblings, stepchildren, stepsiblings, and individuals who stood in loco parentis to the deceased. Moreover, the bill now clearly outlines the limitations of non-economic damages, encompassing aspects such as grief, loss of companionship, consortium, support, protection, and pain and suffering. Additionally, the retroactivity clause has been amended to solely apply to causes of action that arose on or after July 1, 2018.
Potential Implications and Controversies
If the revised Grieving Families Act is successfully passed, it would bring about a substantial impact on the families of wrongful death victims in New York. The expansion of the definition of “family member” would enable a greater number of individuals to initiate wrongful death lawsuits on behalf of their deceased loved ones. These lawsuits would seek damages that encompass the full extent of their losses, including non-economic damages. This expansion acknowledges the diverse nature of contemporary families and recognizes relationships that exist beyond traditional familial ties.
By allowing recovery for non-economic damages like grief, pain, and suffering, the revised bill attempts to acknowledge the emotional toll experienced by family members following the loss of a loved one. By compensating for these non-economic damages, the bill aims to provide families with a more comprehensive sense of justice and closure.
While the revised Grieving Families Act strives to strike a balance between the interests of families and the concerns of insurance companies, critics argue that it will lead to increased costs for insurers and, consequently, higher insurance premiums. Insurance companies express concerns that expanding the recoverable damages and broadening the scope of eligible family members could potentially lead to a surge in lawsuits. They fear that this upswing in litigation could strain their resources and potentially drive-up insurance costs for businesses and individuals. Additionally, making such a law retroactive is problematic for properly reserving existing losses.
Perspectives and Stakeholders
The Grieving Families Act has garnered significant support from families and advocates who contend that the current limitations on recoverable damages fail to adequately address the losses suffered by the loved ones of wrongful death victims. These supporters emphasize the importance of providing fair compensation for grief, pain, and suffering. They also stress the need to recognize a broader range of family members as eligible plaintiffs, aligning the legal system with the evolving societal understanding of the emotional and psychological impact of losing a loved one.
Conversely, critics of the bill, primarily representing defendants, their insurance companies, and some business associations, raise concerns regarding potential confusion, increased costs, and the possibility of competing claims for damages. They argue that the revised legislation could strain insurance resources and disrupt the stability of insurance coverage. Critics emphasize the importance of striking a balance between adequately compensating families and ensuring the sustainability of insurance markets. An analysis from actuarial firm Milliman for the New York Civil Justice Institute found that if the bill is enacted, annual property/casualty insurance premiums could increase by more than $2 billion (about $6 per person in the US) or 11%. Those costs are certain to be absorbed by policy holders and could lead to certain insurers not wanting to underwrite certain risks or in some key venues.
On Tuesday, May 2, 2023, Senator Hoylman-Sigal and Assembly Member Weinstein reintroduced the GFA (Senate Bill S6636/Assembly Bill A6698). While its reintroduction aimed to address some of the concerns raised by Governor Hochul, the bill’s ultimate passage is uncertain. In a short one month period of time, various stakeholders, including lawmakers, families, businesses, and insurance companies, actively engaged in ongoing discussions to explore potential amendments or compromises that would result in a fair and balanced outcome.
On June 6th, 2023 the Senate passed The Grieving Families Act, days after the Assembly passed it, and will go to the governor once again for consideration. The speed with which this has occurred is quite remarkable. Governor Hochul sat on this for an extended period of time, and it will be interesting to see if the Governor signs it as amended less than six months after she first vetoed the measure. Stay tuned.