In California, the right to sue for the wrongful death of another is a statutory right, not one that arises from common law. “Because it is a creature of statute, the cause of action for wrongful death exists only so far and in favor of such person as the legislative power may declare.” Justus v. Atchison (1977) 19 Cal.3d 564, 575.
What amounts to “standing” to recover damages in wrongful death actions is governed by Code of Civil Procedure Section 377.60. That statute permits a cause of action for wrongful death to be asserted by, among others (emphasis added):
“…any of the following persons or by the decedent’s personal representative on their behalf:
(a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
(b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. ….
In another article posted on this blog, I have discussed analytical problems related to determining the dependency of stepchildren, for purposes of their potential recovery for damages for wrongful death pursuant to this statute. Here, I want to address a different, but related issue: assuming plaintiff’s counsel can establish the financial dependence of stepchildren, parents, a putative spouse, or children of a putative spouse under the statute, what is the extent of their potential recovery for damages: is it economic damages only (i.e., sums necessary to compensate them to the extent of the dependence); or is it the full measure of economic damages recoverable by a plaintiff, pursuant to the statutory scheme (i.e., economic damages and non-economic damages for the lack of care, comfort and society of the decedent)?
Pursuant to Code of Civil Procedure 377.61, which sets forth the recoverable damages for wrongful death, it has been held that: “A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent’s financial support, services, training and advice, and (2) the pecuniary value of the decedent’s society and companionship—but he may not recover for such things as the grief or sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental value of the loss.” Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 793, emphasis in the original.
Still, many plaintiffs’ attorneys have had something like this occur: after convincing defense counsel that a parent or stepchild meets the aforementioned statutory, and case law, requirement to prove he or she was “dependent” on the decedent, they are met with a request to submit a claim for damages that includes only a request for compensation to the extent of that financial dependency, but excludes claims for non-economic damages. This is an incorrect assumption on the issue of entitlement to damages, which should be challenged by plaintiffs’ counsel.
That response should be that case law makes clear that a dependent parent or stepchild is entitled to the full measure of statutory damages, not just to economic damages that compensate for the loss sustained related to the dependency.
Although the issue is little explored, one authority states just that. See, Perry v. Medina (1987) 192 Cal.App.3d 603, 608, abrogated on other grounds by Saldana v. Globe-Weis Systems Co. (1991), internally quoting Riley v. California Erectors, Inc. (1973) 36 Cal.App.3d 29, 32, emphasis added: “[O]nce financial dependency is shown, then the parent may recover ‘for the loss of that child’s comfort and society, and subsequent protections which the child may afford to the parent, provided these elements are considered in reasonable relation to pecuniary loss.’”
Perhaps the frequency of defense counsel’s frequent misapprehension of this rule arises from the fact that questions concerning the entitlement to statutory recovery by a “dependent” parent or stepchild do not arise that frequently. But when they do, the answer is clear. Counsel should assure that claimants whose standing arises under the “dependency” prong of the wrongful death statute obtain the full measure of damages to which they are entitled.