Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014

5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...

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RemediesNY Wrongful death , collateral sources, liens, interest

Prof. George W. Conk

[email protected]

Room 8-122212-636-7446

Elected Member, American Law Institute

Adjunct Professor of Law & Senior FellowStein Center for Law & Ethics

1Damages - wrongful death, collateral

sources, liens, etc.
mailto:[email protected]:[email protected]


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The Wrongful Death and

Survival ActionsNew York statutes




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NY CLS EPTL 11-3.2 (2008)

Action for injury to person or property survives

despite death of person in whose favor or

against whom cause of action existed

(a) Action against personal representativefor injury to person or property.

(1) No cause of action for injury toperson or property is lost because of

the death of the person liable for theinjury.




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NY CLS EPTL 11-3.2 (2008)

Action for injury to person or property survives

despite death of person in whose favor or

against whom cause of action existed

(b) Action by personal representative forinjury to person or property.

No cause of action for injury to person orproperty is lost because of the death of

the person in whose favor the cause ofaction existed.




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Elements for which recovery is allowed

in the survival action

Losses end at death

Wages/earnings/profits - doa to dod

Medical care

Property damage

Lifetime Pain, suffering, disability,

impairment

Prejudgment interest 5Damages - wrongful death, collateralsources, liens, etc.


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NY CLS EPTL 5-4.3

The Wrongful Death Action

Rights of Members of Family Resulting fromWrongful Act, Neglect or Default Causing Death

of Decedent

(a) The damages awarded to the plaintiffmay be such sum as the jury orthecourt deems to be fair and just

compensationfor the pecuniary injuriesresulting from the decedent's death to thepersons for whose benefit the action isbrought.




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Allowable Elements of damage


Medical expenses

Reasonable funeral expenses paid orpayable by the estate or distributees

Loss of financial contributions

Lost services

Loss of parental care, advice, andguidance

Loss of inheritance




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Types of lost services compensable

Household maintenance activities - house cleaning, meal preparation, clothing

care, home repairs; child care; health care;household finance; and chauffeur services

Value of spouses services Measure of damage: the cost of employing a

third person for household service

Loss of parental* care, advice andguidance.

- intellectual, moral, religious, physical training8

Damages - wrongful death, collateralsources, liens, etc.


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Elements for which recovery is

Denied in NY wrongful death

Pain, suffering of decedent

Grief

Loss of consortium Emotional injuries suffered by the

survivors *

No enhancement of loss of servicesdamages due to character of provider




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NY CLS EPTL 5-4.3


Interest upon the principal sumrecoveredby the plaintiff from thedate of the decedent's death shallbe

added to and be a part of the totalsum awarded.

Punitive damages




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Statutory erosion

NY CLS CPLR 4545

(a) Action for medical , dental or podiatricmalpractice

In any action for medicalmalpractice where theplaintiff seeks to recover for the cost of medical

care loss of earnings or other economic loss,

evidence shall be admissible

to establish that any such past or future cost or

expense was or will, with reasonable certainty,be replaced or indemnified, in whole or in part,from any collateral source




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NY CLS EPTL 5-4.3

Net damage in med mal cases

(c)(i) In any action in which the

wrongful conduct is medical

malpractice or dental malpractice,evidence shall be admissible to

establish the federal, state and local

personal income taxes which thedecedent would have been obligated

by law to pay.12

Damages - wrongful death, collateralsources, liens, etc.


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Collateral SourcesInsurance, liens, etc.




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The Collateral Source Rule

Evidence of collateral sources of

compensation available to the

plaintiff is not admissibleby the

defendant to reduce the amount of

damages recoverable




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Statutory erosion

NY CLS CPLR 4545

insurance (except for life insurance) social security (except retirement benefits)

workers' compensation or employee

benefit programs (exceptsuch collateral sources entitled by

law to liensagainst any recovery of the

plaintiff)




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Liens

Workers compensation

Funded benefit plans governed by

ERISA

Medicare

Medicaid




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Other liens

Welfare

Public defender

Child support

letters of protection




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Statutory erosion

NY CLS CPLR 4545

Operation The Court shall reduce the amount of

the award by such finding, minus an

amount equal to the premiums paidby the plaintiff for such benefits forthe two-year period immediately

preceding the accrual of such actionand minusan amount equal to theprojected future cost to the plaintiffof maintaining such benefits.




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Statutory erosion

NY CLS CPLR 4545

(b) Certain actions against a publicemployer for personal injury andwrongful death.

evidence shall be admissible forconsideration by the court to establishthat any such cost or expense was

replaced or indemnified, in whole or inpart, from a collateral source provided orpaid for, in whole or in part, by the publicemployer




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Statutory erosion

NY CLS CPLR 4545

including but not limited to paid sick leave

medical benefits

death benefits dependent benefits

disability retirement allowance

social security (except retirement benefits) but shall not include those collateral

sources entitled by law to liens againstany recovery of the plaintiff.




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Statutory erosion

NY CLS CPLR 4545

(c) Actions for personal injury, injuryto property or wrongful death.

In any action brought to recover

damages evidence shall be admissiblefor consideration by the courtto establishthat any such past or future cost orexpense was or will, with reasonablecertainty, be replaced or indemnified, inwhole or in part, from any collateralsource, etc.




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Spousal obligation The Necessaries

Doctrine

MBA v. Steiner, 588 N.Y.S.2d 890 (1992)

a spouse who has incurred a debt for necessarygoods or medical treatmentis primarily liable for

that debt a creditor seeking to recover for necessaries

must demonstrate that necessaries werefurnished on the nondebtor spouse's credit

responsibility to pay for a spouse's debts mustremain limited by the nondebtor spouse's abilityto do so




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NY CLS CPLR 5001

Interest

NYprejudgment interest

Not in personal injury

except in wrongful death actionsAllowed in:

breach of contract

Actions re interfering with title to, orpossession or enjoyment of, property

Discretionary in equity actions




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NY CLS CPLR 5002. Interest from

verdict, report or decision to judgment

Interest shall be recovered upon the totalsum awarded, including interest to verdict,report or decision, in any action, from the

date the [liability] verdict was renderedorthe report or decision was made to thedate of entry of final judgment.

The amount of interest shall be computedby the clerk of the court and included inthe judgment.




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NY CLS CPLR 5003

Interest

Every money judgment shall bear interest

from the date of its entry. Every order

directing the payment of money which has

been docketed as a judgment shall bear

interest from the date of such docketing.

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Periodic PaymentsIn Medical Malpractice Cases



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Article 50-a. Periodic Payment of Judgments in

Medical and Dental Malpractice Actions

NY CLS CPLR 5031 Basic rule: lump sum awards of damages

in personal injury and wrongful deathclaims

Exceptions:

Med mal recoveries over $500,000

- 35% or $500k in a lump sum

- balance over 8 years



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Periodic payments

(d) The findings of future economic andpecuniary damages except in wrongful deathactions, shall be used to determine a stream of

payments for each such item of damages byapplying

(i) the growth rate, to the (ii) annual amount incurrent dollars, for the (iii) period of years, all of

such items as determined by the finder of factfor each such item of damages.



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Present value discount

(e) US Treasury rate for the ten-year UnitedStates Treasury Bond on the date of the verdict.

If over 20 years the discount rate to be used indetermining the present value shall becalculated by averaging, on an annual basis, therate in effect for the ten-year United StatesTreasury Bond on the date of the verdict for the

first twenty years and two percentage pointsabove the ratein effect for the ten-year UnitedStates Treasury Bond on the date of the verdict

for the years after twenty years.

29Damages - wrongful death, collateralsources liens etc

Documents

Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014