Feldman, Kleidman, Collins & Sappe LLP (FKC&S) was retained by two adult children following the sudden and tragic death of their father. Their father, a 77-year-old man, was killed in a motor vehicle collision, leaving behind two adult children and four grandchildren.
Under New York state law, a party is not permitted to recover for grief, loss of society, affection, conjugal fellowship and consortium stemming from a wrongful death action. Liff v. Schildrout, 49 N.Y. 2d 622 (1980). Instead, New York’s wrongful death statute permits a decedent’s distributees to recover “fair and just compensation” for their pecuniary – or financial or monetary – injuries. At first glance, one might assume that pecuniary damages are limited losses that are easily quantified such as lost wages or financial support. New York courts, however, have long recognized that the loss of parental guidance has a measurable economic value.
This case demonstrated exactly that.
Shortly after the collision, the defendant driver tendered their full insurance policy of $100,000 to the decedent’s estate. The decedent, however, also maintained an additional $150,000 of supplementary underinsured motorist (SUM) insurance available through his own insurance policy. The SUM carrier initially refused to offer the family any additional compensation. Their position was that the $100,000 tendered by the defendant driver adequately compensated the estate, and any additional award would be compensating the family for their grief rather than pecuniary loss.
We disagreed.
Our firm filed a demand for arbitration with the American Arbitration Association (AAA), and the matter was assigned an arbitrator and scheduled for an arbitration hearing. Only after the arbitration demand was filed did the SUM carrier offer an additional $25,000 — that offer was rejected by the family.
We proceeded to the hearing.
At the hearing, the decedent’s adult children testified about the guidance and support that their father provided to them and their children. His role in the family did not end when his children became adults. He remained someone they regularly turned to for guidance on marriage, finance, school, sports and other important life decisions. This support was particularly significant for one of the decedent’s children, an active-duty member of the military who was frequently deployed overseas. He testified that while he was deployed, his father routinely stepped in to provide guidance and support to his wife and children.
After carefully considering the testimony and exhibits presented at the hearing, the arbitrator agreed with our position and awarded the family the entire SUM insurance policy, which resulted in an additional $150,000. In her written decision, she concluded that the family had sustained a significant loss of parental guidance as a result of the collision.
This case serves as a reminder that although New York law does not provide compensation for grief, the family can be compensated for the loss of guidance that the decedent provided to the family. We recognize that the guidance, advice and support a parent provides has a lasting impact on their families, even when the children left behind are adults.