Q: Dad died on account of a automotive crash and we imagine the opposite driver was engaged in actually reckless conduct. We’re going to pursue a wrongful demise motion, however have been informed we could not have the ability to search punitive damages as a result of Dad has died. Is that proper?
A: Punitive damages are sometimes called exemplary damages. They’re “to set an instance,” to function a deterrent, to punish the wrongdoer who engages in conduct that’s so offensive to the group that it rises to the extent of oppression, fraud or malice. Nonetheless, when an individual has died, the legislation usually deems punitive damages unavailable as a result of the person is now not with us. There isn’t a “dwell” to particular person compensate. There are, nevertheless, sure exceptions.
If it may be confirmed that the demise was attributable to felony murder of the defendant, then punitive damages may be sought. This requires the defendant to be individually and efficiently convicted in a prison case associated to the wrongful demise.
There’s one other chance: a survival motion. Right here, the property of the decedent can file a declare for punitive damages if the sufferer suffered financial loss earlier than demise. It may be a minor loss, equivalent to misplaced wages or medical bills, and even as modest because the decedent’s clothes. Given the particular nature of a survival motion, session with certified counsel is really helpful. Dialogue of a survival motion follows with the subsequent query.
Q: What’s a survival motion and what damages may be sought?
A: A survival motion is so named as a result of it “survives” the demise of the injured celebration. It’s an motion introduced by the decedent’s successors or heirs to get well damages the deceased would have been entitled to from the time of his or her harm to the time of demise. The governing statute is California Code of Civil Process 377.34, which you’ll find on-line by typing it into your internet browser.
Immediately, the plaintiff(s) in a survival motion may be awarded damages for the decedent’s pre-death ache, struggling or disfigurement. This legislation (which was just lately amended) is ready to run out on January 1, 2026, at which period the California Legislature is to reassess it. My impression is that Part 377.34 will proceed to be the legislation thereafter. At current, the decedent’s property is entitled to hunt an award of punitive damages in a qualifying case, that are along with such objects as misplaced family companies, property harm and future items.
Ron Sokol has been a training lawyer for over 40 years, and has additionally served many instances as a choose professional tem, mediator, and arbitrator. You will need to understand that this column presents a abstract of the legislation, and isn’t to be handled or thought of authorized recommendation, not to mention an alternative to precise session with a professional skilled.