by John Darer CLU ChFC CSSC
What happens when a jury awards future damages for pain and suffering under CPLR Article 50-A or 50-B and plaintiff dies the next day? Does the plaintiff lose their recovery for the element of future damages to be paid in cash? On March 15, 2005 Ethel Flanzraich died one day after being awarded damages on March 14, 2005.and the question has been the subject of legal debate
New York's Periodic Payment of Judgment statute, Article 50-B of the New York's Civil Practice Law Rules ( CPLR ) deals with payment of damages on personal injury, injury to property and wrongful death actions.
Generally the statute, which became effective in August 1986, provides that future damages over $250,000 be paid periodically. The amount under $250,000 is paid as a lump sum. In addition, and applicable to this post, certain elements of future damages (e.g. future pain and suffering, future medicals) that are paid periodically, cease upon the death of the plaintiff.
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On September 18, 2007 the Appellate Division in the Second Department in Stinton v. Robin's Wood, 06-03926. (2007 NY Slip Op 6863; 2007 N.Y. App. Div. LEXIS 9795) unanimously upheld a lower court decision concerning the $150,000 future pain and suffering awarded to Ethel Flanzraich on March 14, 2005.
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The primary issue was whether the $150,000 damages award for future pain and suffering should have been set aside pursuant to policy considerations underlying CPLR Article 50-B since the plaintiff's decedent Ethel Flanzraich died March 15, 2005, one day after the Supreme Court directed the award of such damages at the conclusion of an inquest on damages.
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The court said , in exercising its discretion :
"The defendant argues that the decedent's death the day after the Supreme Court rendered its verdict warrants reconsideration of the future pain and suffering award in order to prevent a "substantial injustice" to the defendant or a "windfall" to the plaintiff. In so arguing, the defendant relies upon policy considerations underlying
CPLR article 50-B. The defendant asks this court "to balance whether this plaintiff should be compensated $ 150,000 for less than one day of pain and suffering against the rationale stated by the Legislature in enacting
CPLR Article 50-B that periodic payments for future pain and suffering should terminate upon the death of the plaintiff to achieve a reduction in skyrocketing insurance premiums
for all insureds in the State".
We do not agree that this is a circumstance in which, either pursuant to the court's inherent power or by statutory authority, the future pain and suffering award should be set aside or reduced."It appears from the Slip Opinion that the defendants unsuccessfully argued that the $150,000 be subject to the "cease upon death" rules that apply to the future damages (in excess of $250,000) which are to paid periodically.
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