Published by MCB Appellate Practice Group Barbara D. Goldberg, Gregory A. Cascino, Richard Wolf
On December 21, 2024, Governor Kathy Hochul vetoed Assembly Bill A9232-B, the Legislature’s third attempt at enacting the Grieving Families Act. Since the current Legislative Session has ended, Governor Hochul’s veto is not subject to an “override.” Accordingly, the Grieving Families Act will need to be re-introduced and re-passed by the Legislature, and re-presented to Governor Hochul.
In 2022, the Legislature passed Senate Bill S74A, the proposed bill entitled the Grieving Families Act, which would have amended, and potentially repealed significant aspects of, New York Estates, Powers, and Trusts Law Sections 5-4.1 and 5-4.3 through 5-4.6,which currently govern wrongful death cases. However, Governor Hochul vetoed the bill on January 30, 2023, noting that the bill, if enacted into law, would have increased insurance burdens on families and small businesses, and further strained healthcare workers and institutions, including hospitals in underserved communities.
In June 2023, the Legislature passed a revised version of the Grieving Families Act. While slightly more limited than the original version, the revised Grieving Families Act would still have greatly expanded the time in which to bring a wrongful death claim, as well as the damages which could have been recovered and the class of persons who could have recovered those damages. On December 29, 2023, Governor Hochul vetoed the revised version of the Grieving Families Act, again finding that the bill created “the potential for significant unintended consequences, ”including, like the original version, “increased insurance premiums for the vast majority of consumers, as well as risk the financial well-being of our health care facilities – most notably, for public hospitals that serve disadvantaged communities.”
On June 5, 2024, the Legislature passed a third version of the Grieving Families Act. The Act’s stated purpose, like the previous versions, is to permit the families of wrongful death victims to recover compensation for their “emotional loss.” Under the current law, recovery is limited to pecuniary injuries stemming from the decedent’s death to the decedent’s distributees.
The third version of Act, if enacted, would have extended the time to file a wrongful death action from two years to three years from the date of the decedent’s death.
Second, it would have allowed for “persons for whose benefit the action is brought”(defined below) to receive compensation for non-economic losses if a tortfeasor is found liable for causing a death, and not just pecuniary losses. The bill specifically authorized recovery for “grief or anguish caused by the decedent’s death.” It also would have permitted recovery for “loss of services, support, assistance and loss or diminishment of inheritance, resulting from the decedent’s death,” as well as “loss of nurture, guidance, counsel, advice, training, companionship and education resulting from the decedent’s death.”
Third, this version of the bill would have greatly expanded the class of persons who could recover damages for wrongful death. Under current law, only distributees of the decedent may recover damages; however, the bill permitted recovery by what it refers to as “persons for whose benefit the action is brought.” This term is defined as decedent’s “spouse or domestic partner,” “distributees,” “any person standing in loco parentis to the decedent,” and “any person to whom the decedent stood in a position of in loco parentis.” It further provided that an in loco parentis relationship would be presumed “when an adult and minor share or have recently shared a household.” Lastly, it provided that the finder of fact would determine who, amongst the class of persons who can potentially recover damages, is entitled to recover, “based upon the specific circumstances relating to the person’s relationship with the decedent.” This is a slight change from prior versions which allowed recovery by spouses or domestic partners, issue(which presumably includes children and grandchildren), foster-children, step-children, step-grandchildren, parents, grandparents, step-parents, step-grandparents, siblings, and “any person standing in loco parentis to the decedent.”
Finally, the Act, had the Governor signed it, would have applied to causes of action that accrued on or after January 1, 2021, a change from prior versions of the Act which would have either taken effect immediately and applied to all pending and future actions(first version) or “to all causes of action that accrue on or after July 1,2018, regardless of when filed” (second version).
In her veto message, Governor Hochul stated that, while “well-intentioned,” the wrongful death legislation passed by the Legislature over the past three years “would likely have resulted in higher costs to patients and consumers, as well as other unintended consequences.” She stated that the third version of the Act, like the first two, “continues to pose significant risks to consumers,” such as the potential for “higher costs, including insurance premiums.” Governor Hochul again expressed concern that the Act may “risk the financial well-being of our healthcare system, including those hospitals that serve disadvantaged communities.” She expressed willingness to work “collaboratively to find solutions that support impacted families while avoiding unintended consequences.”
We will continue to provide updates, including whether a fourth version of the Grieving Families Act is introduced and passed by the Legislature, in the coming months.
Legislative Alert is published by the Appellate Practice Group of Martin Clearwater & Bell LLP to inform clients about significant legal developments. This publication is intended for general information only and should not be used for specific action without obtaining legal advice. If you would like further information about the services of Martin Clearwater & Bell LLP, please contact Barbara D. Goldberg at (212) 916-0989 or goldbb@mcblaw.com, or Gregory A. Cascino at (516) 712-3146 or gregory.cascino@mcblaw.com, or Richard Wolf at (212) 916-0963 or richard.wolf@mcblaw.com