Unfortunately, it is not uncommon that a plaintiff pass away while a lawsuit is ongoing. Cases can take months or years to resolve. Litigation can be slow and courts are congested. During that time the person that brought the lawsuit can pass away. What happens to the case next?
The Old Rule
In the past, if the person that filed the lawsuit, the plaintiff, died then the “pain and suffering” damages also ended. The only thing that could be recovered were past “economic” damages like past medical bills that were the responsibility of the estate. This was called a survival action.
Under the old rule, it could be particularly hard for loved ones that depended on the person that was injured. The plaintiff may not have been able to work or the injuries could have made life very difficult. If the plaintiff passed away while the lawsuit was ongoing, the defendants and insurance companies recieved a windfall and were not on the hook for all the harm they caused. Insurance companies were incentivized to slow down lawsuits hoping that a plaintiff would pass away.
The New Rule
Well, that rule has changed. As on January 1, 2022, a representative of the person who passed away can take over the lawsuit and still collected past and pain and suffering damages. See Code of Civil Procedure Section 377.34. You can ready the actual code section here: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP§ionNum=377.34.
Now, the insurance companies and defendants are less incentivized to slow down the lawsuit. They know they will be on the hook no matter what happens to the plaintiff. Although future pain and suffering and future medical cost are still not recoverable.
The New Rule May Not Last Forever
The changes to the law are set to expire on January 1, 2026. The court and legislature are testing this change and are compiling data. Notably, 45 other states allow for pain and suffering damages in survival actions. The Legislature will review the data and use it to determine whether survival actions should continue to include pain and suffering damages beyond January 1, 2026.
What the Process Looks Like
Your attorney should be there to assist you after the death of a loved one who was a plaintiff in a case. If the plaintiff passes away, the first thing we need to establish is the representative of the deceased’s person to take over the handling of the case. In other words, the estate’s personal representative or the deceased person’s successor can step in. This can be a spouse or other designated person.
Even though the personal representative works with your spouse’s attorney, the settlement money still belongs to the estate. The settlement amount simply becomes another asset of the estate. Suppose your spouse passes away without a will or any other element of an estate plan. In that case, the assets could get distributed per California’s intestate laws as they pass through the probate courts.
The important thing is that the insurance companies and defendants will no longer get a windfall by delaying a case and hoping the plaintiff will pass away.
Get in Touch with a Personal Injury Attorney
Howell, LLP, has firsthand experience navigating through the circumstances outlined above. A client, who was healthy, suddenly passed away. Because of the new law we mentioned, we were able to obtain money for the widow. If you have been injured due to someone else’s negligence, contact us today to schedule your free consultation.
