Update on the Grieving Families Act

As many of you may know, Governor Kathy Hochul vetoed 2022 NY S74A, otherwise called the Grieving Families Act [GFA]. The GFA would amend the Estates, Powers, and Trusts Law [EPTL] insofar as recovery of damages for the families of decedents is concerned.

The current wrongful death statue, passed in 1847, precludes close family members from compensation for their non-economic loss in wrongful death suits. The proponents of the change have argued that the current law, which awards compensation for pecuniary loss only, including loss of parental guidance for children, impacts most harshly on children, seniors, women and people of color, who often have no income or significantly less income, and are traditionally undervalued in our society.

On June 2, 2022, the Grieving Families Act (A6770/S74A) passed overwhelmingly in the New York State Assembly (147 votes in favor; 2 votes opposing; 1 excused) and in the New York State Senate (57 votes in favor; 6 votes opposing). In summary, the Bill proposed the following changes to the EPTL:

Section 1 would amend EPTL section 5-4.1 to extend the statute of limitations to commence a wrongful death action from two years to three years and six months, a significant increase that will permit many more wrongful death cases to go forward.

Section 2 amends EPTL section 5-4.3, to families to recover more than just pecuniary/economic damages. The act would allow damages such as grief, emotional anguish, loss of support/protection, loss of companionship, and loss of consortium caused by the death of a family member.
Section 3 amends EPTL section 5-4.4 to permit recovery by close family members which is not defined. Under the current law, only the distributees of the estate (including parents and spouses) were permitted to recover. This permits recovery by close family members, which may include but are not limited to, a spouse or domestic partner, children, grandparents, stepparents, and siblings. Whether someone is a close family member is an issue for the factfinder to decide based upon the specific circumstances relating to the person’s relationship with the decedent.
Section 4 amends EPTL section 5-4.6 to replace distributees with persons for whose benefit the action is brought. “Close” family members could include non-married couples (domestic partners as defined in Section 2961 of the Public Health Law), parents, step parents, and siblings. A finder of fact would determine which people qualify as close family members to a decedent based on the circumstances of the decedent’s relationship with those people. Section 4 replaces the term “distributees” with “persons for whose benefit the action is brought” since current law permits only the distributees of the estate to recover.
Section 5: This Act would take effect immediately and apply to all PENDING actions, as well as any actions commenced on or after the date it goes into effect.
The bill was officially delivered to Governor Hochul on December 28, 2022. On January 30, 2023, Governor Hochul officially vetoed the legislation and released an Op-Ed in the New York Daily News opposing the bill.
In summary, she stated her rationale for the veto as follows:

– The legislation as drafted will have significant unintended consequences such as driving up health insurance premiums and adding costs to hospitals;

– The legislation could negatively impact the economy, small businesses, doctors, nurses, and the healthcare system overall;

– Her recommendation was to amend the legislation and sign into law an act which would give only parents access to the emotional damages described in the bill when they lose a child; and

– She also recommended that the legislation NOT apply to medical malpractice claims.

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 – including personal auto and general liability for small businesses – could increase by more than $2 billion or 11%. For medical professional liability insurance, costs are projected to balloon by as much as 45%. Self-insured firms could see liability costs rise $1.7 billion or more than 15% a year, according to Milliman.

Governor Hochul’s veto means the bill will be returned to the Senate with her objections and reconsidered. The veto can be overridden pursuant to Article IV, Section 7 of the NYS Constitution. The bill is first returned to the Senate. If 2/3’s of the Senate agrees to pass the bill, it moves to the Assembly where it is reconsidered. If 2/3’s of the Assembly agrees to pass it, it becomes a law notwithstanding the objections of the governor.

As the bill was passed during the previous Legislative Session, 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, if it is to become law.

We will continue to monitor this bill’s progress through the legislative process and provide our analysis of any legislation that is enacted. We welcome the opportunity to discuss any questions you may have and look forward to continuing our representation of the interests of your insureds.