Yesterday, New York Governor Kathy Hochul vetoed Senate Bill S74A, better known as the Grieving Families Act (“the Act”), which was meant to overhaul the state’s wrongful death statute. The Bill was delivered to the governor's desk on December 28 and, after she was unable to secure last-minute support to proposed changes to the Bill, Governor Hochul vetoed the bill on January 31.
The Act, which would have been the first significant update to New York’s wrongful death statute since the 1800s, would have, among other things, allowed families of wrongful death victims to pursue and recover compensation for emotional distress and anguish from the party responsible for their family member’s death, regardless of the income-earning potential of the deceased. New York’s wrongful death statute does not currently account for such injuries. Rather, families are only able to obtain compensation for pecuniary losses directly related to the death of their loved one, such as medical expenses, lost income, and funeral and burial costs. The current statute also narrowly defines which of the decedent’s family members are entitled to recover such compensation.
The vetoed Act would have expanded New York’s current wrongful death statute in three main ways. First, as mentioned above, it would have permitted family members to recover damages for emotional and noneconomic losses. Specifically, it would have provided for recovery for, among other things: “grief or anguish caused by the decedent’s death, and for any disorder caused by such grief or anguish”; “loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death”; and “loss of nurture, guidance, counsel, advice, training, and education resulting from the decedent’s death.” N.Y. S. S74A Reg. Sess. 2021-2022 (2021). Second, the Act would have expanded the group of people allowed to recover compensation from only designated family members to surviving close family members. The legislation provided that who qualifies as a close family member would be decided by a fact-finder, but could include (and would not have been limited to) a spouse or domestic partner, issue, parents, grandparents, step-parents, and siblings of the decedent. Finally, the Act would have extended the current law’s two-year statute of limitations to three years and six months.
In an op-ed published in the New York Daily News hours before the deadline, Governor Hochul expressed sympathy for the concerns of experts, industry groups, and insurers, saying, "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, particularly hospitals that are still recovering from the pandemic and struggling to stay afloat -- including public hospitals that serve disadvantaged communities."
Opponents of the Act included chambers of commerce and over two dozen industry groups, including insurance industry leaders. Insurance trade groups cited concerns that this legislation would have a significant impact on the cost of liability insurance in New York state. They believed that it would open the floodgates to potential litigants, thereby increasing insurance companies’ potential exposure and causing the cost of insurance premiums to skyrocket. An actuarial analysis by Milliman estimated that the legislation had the potential to increase annual overall insurance premiums in New York by $2.2 billion. Opponents also claimed that increased liability costs would affect New York’s economy more broadly by leading businesses to increase prices, decrease pay, and potentially lay off employees, and by discouraging new companies from coming into, and local entrepreneurs from remaining in, New York.
Noting the speed with which both houses of the Legislature approved the Bill last June, Governor Hochul cautioned that "This is a question that would benefit from careful analysis before, not after, passing sweeping legislation."