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Newsletter -
Winter 2008
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On January 8, 2008, the New Jersey Legislature passed Senate Bill 176, which sought to amend the New Jersey Wrongful Death Statute to permit the family of a decedent to sue for the emotional harm suffered as a result of the decedent’s death. Fearing a significant detrimental impact on state and local budgets as well concern regarding the Act’s potential to discourage business growth, Governor Jon Corzine vetoed the Bill on January 15, 2008. Had the Bill been signed into law, New Jersey would have become one of only eight States to offer unlimited damages for emotional suffering.
The current Wrongful Death Statute establishes a cause of action for an individual’s beneficiaries when that individual dies as a result of the wrongful conduct of another person. Damages available in a wrongful death action are limited to the actual pecuniary or financial loss of the victim; essentially, the family is entitled to the money and benefits the decedent would have contributed had he or she survived. When determining an award, jurors are specifically instructed not to consider the emotional harm suffered by the family as a result of the death. Consequently, families who institute wrongful death actions for the loss of a child or elderly relative often receive far smaller awards when compared to those who died while at the height of their earning potential.
The new amendment sought to expand the type of damages recoverable in wrongful death actions to include compensation for mental anguish and emotional pain suffered by a member of the decedent’s family as well as the loss of society and loss of companionship occasioned by the death. Accordingly, under the Amendment, jurors would be allowed to hear evidence of the emotional trauma suffered by the family and could consider it when determining an appropriate award.
The expanded damages available in wrongful death actions under the proposed law would be similar to those allowed in a claim for emotional distress made under Portee v. Jaffee, 84 N.J. 88 (1980). A Portee claim limits claims for emotional damages to certain persons who witnessed the death of a spouse, child, or other individual with a close familial relationship, while that person was present within the immediate “zone of danger” when the accident occurred. Unlike Portee claims, however, the new amendment to the Wrongful Death Statute would not have required aggrieved family members to witness the demise firsthand, allowing recovery regardless of their location, ostensibly even if they were only notified of the death by telephone, etc.
The effect of Senate Bill 176 was far reaching and would likely have increased litigation, and costs, significantly. Under the current law, plaintiffs and defendants are both well aware of the limitation on damages provided in the Wrongful Death Statute. Moreover, the actual financial loss resulting from the death of an individual is generally ascertainable through the testimony of an economic loss expert. As such, the current Wrongful Death Statute fosters a pro-settlement environment, which helps to control litigation costs. Under Senate Bill 176, the possibility of a large jury award based on damages for mental anguish and loss of companionship would likely entice plaintiffs to gamble on a trial rather than settle, thereby driving up the cost of litigating such claims.
Similarly, the potential for inflated jury awards would also increase. Senate Bill 176 permits an aggrieved family to sue for emotional harm; however, the Bill provided no guidance on how one was to value those claims. Thus, juries would be left to their own imagination, which could be swayed by empathy or a dynamic plaintiff’s counsel.
Senate Bill 176 will likely have an effect on juries regardless of the fact that it was vetoed. Due to its recent publicity, the Bill will probably be in the minds of jurors and therefore, one can expect them to consider the emotional distress of the family when determining an award even if such considerations are technically prohibited.
Insurance carriers must recognize that Senate Bill 176 had the broad support of the New Jersey Legislature. As such, it is only a matter of time before legislation of similar import is reintroduced. In fact, Governor Corzine had initially indicated support for the bill and surprised everyone with his change of opinion. Politics being as they are, this bill should not be considered dead and could very well be revived in the near future. In such a case, carriers should be quick to appreciate the significant impact unlimited emotional damages would produce and take steps to limit their exposure wherever possible by considering options for early resolution of death cases.
Daniel B. McMeen, Esq.
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