This resolution responds to recent attempts in several state legislatures to expand both the scope of damages authorized and the class of claimants permitted to bring claims under wrongful death acts. These efforts, spearheaded by the personal injury bar (the Association of American Justice, formerly the Association of Trial Lawyers of America, and its state sister groups), aim to increase litigation and resulting damages through departure from over a century of well-settled law. Such proposals seek to authorize or expand recovery available for a wide range of non-pecuniary damages, such as loss of companionship or pure grief. These inherently subjective awards are prone to extraordinary and untenable amounts given the high level of emotions in situations involving death of a family member. No amount of money can bring back a loved one. Money is a false indicia for measuring or relieving loss of companionship, grief, or sorrow. Other legislative proposals would bring a host of relatives into the litigation lottery and ignore a basic purpose of wrongful death statutes: to compensate those who have suffered a significant economic loss because of the death of a close relative. These measures would drastically expand liability and fundamentally alter state law.
WHEREAS, states enacted wrongful death acts beginning in the mid-nineteenth century as a response to the common law principle that a person’s legal action ceased to exist with his or her death. In other words, an individual could recover if he or she seriously injured, but his or her family could not recover if the person died;
WHEREAS, wrongful death acts were intended to provide fair recovery for close family members who suffer economic loss because of the death of a loved one;
WHEREAS, damages under wrongful death acts compensate the decedent’s family for all of the direct losses incurred as a result of the decedents’ wrongful death, including medical and funeral expenses, the decedent’s lost income based on his or her prospective earning capacity and probable life expectancy and the financial equivalent of the decedent’s lost services;
WHEREAS, over time, courts and legislatures have provided juries with flexibility to broadly consider economic losses, permitting them to arrive at a fair recovery. For instance, juries may generally consider the lost earnings that a child might have in the future if his or her life had not been curtailed, or, in the case of a homemaker, the economic value of his or her caring for children, cooking, cleaning, and maintaining household finances;
WHEREAS, states generally limit recovery under wrongful death acts to pecuniary loss damages in order to avoid unbridled, unpredictable, and unlimited damages resulting from the inherently subjective determination of non-economic damages, such loss of companionship and grief.
WHEREAS, there is no objective standard for measuring loss of companionship, grief, and other emotions. If family members were permitted to recover such damages, there would be a high likelihood of excessive awards based on passion and possibly lawyer manipulation of such emotions;
WHEREAS, survivorship laws outside wrongful death acts permit recovery for pain and suffering experienced by the deceased person before he or she died and provide for punitive damages where the death was due to a malicious act or grossly reckless conduct;
WHEREAS, several state legislatures have recently considered proposals to expand wrongful death acts to permit greater recovery for a broader range of individuals apart from immediate family including husband, wife, and children;
WHEREAS, current efforts to expand permissible recovery or the class of persons who may recover in the event of a wrongful death under wrongful death statutes would represent a drastic departure from over a century of well-settled law, and result in windfalls for some;
WHEREAS, allowing such expansion would substantially and unfairly increase the resulting damages from any wrongful death without objective standards or reasonable limits in scope;
NOW THEREFORE BE IT RESOLVED, that the American Legislative Exchange Council supports preserving the criteria of full economic loss in wrongful death acts and opposes legislation that would (1) expand availability of subjective non-economic compensatory damages under a wrongful death act; or (2) expand the class of persons who may recover in the event of a wrongful death.
Approved by ALEC Board of Directors on September 11, 2008.