Today’s very practical and specific alert addresses a particularly annoying bugaboo of New York wrongful death litigation that has plagued far too many mediations and risk evaluations over the past few decades. One would have thought that the issue, having been decided by the New York Court of Appeals many years ago, would no longer elude modern practitioners. But it does, and frequently, and thus unnecessarily undermines the ability of parties to reach negotiated resolution of fairly simple and straightforward claims.
In our experience, far, far too many counsel – plaintiff and defendant – and mediators operate in 2023 under the misapprehension that pre-judgment interest runs from the date of death in wrongful death matters in New York. However, this is entirely incorrect. As it remains in plaintiff’s pecuniary interest to take this position, feigned ignorance can be excused. But actual ignorance of the settled applicable law by plaintiffs, defendants, and mediators unnecessarily prevents settlement, perpetuates litigation and delay, and is inexcusable.
Here is the rule in a nutshell:
- Pre-judgment interest on the survival action (the conscious pain and suffering component) only begins to run at the date of the liability determination. No pre-judgment interest on the pain and suffering component accrues prior to this time.
- Pre-judgment interest on the wrongful death components (pecuniary/economic losses) does not run from the time of death unless first discounted to the date of death.
- Past: Interest on past pecuniary losses are generally calculated one of two ways: by choosing a “single reasonable intermediate date” between death and verdict to use as the interest accrual date, (Milbrandt v. A.P. Green Refractories Co., 79 N.Y.2d 26 (1992); CPLR 5001(b)), or by first discounting to the date of death before using that date as the interest accrual date. See Toledo v. Iglesia Ni Christo, 18 N.Y.3d 363, 365 (2012). Frankly, an even simpler third way to calculate the pre-judgment interest on the past pecuniary losses is utilizing 4.5% as the interest rate for the entire period from death to verdict. The numbers true out no matter which method you utilize.
- Future: Interest on future pecuniary losses is calculated by first discounting this figure to the date of death as well. Toledo, supra. If the future damages are not first discounted, then no pre-verdict interest can be awarded on the future damages. Milbrandt, supra.
- To obtain an even more specific idea of valuation with interest, we always encourage both plaintiffs and defendants to have a structure broker assigned to the file to run proposed CPLR 50-B numbers.
We recently attended a mediation in a death case where plaintiff was represented by a true “pro’s pro” of the plaintiff bar (and a real gentleman to boot). Unlike far too many of our experiences in most wrongful death mediations, this counsel had properly calculated the interest piece on various proposed figures. This eliminated an unnecessary phantom obstacle that tends to waste so much time at such mediations and allowed the parties to focus on and resolve the legitimate issues before them (successfully, I might add).
Please circulate this to anyone handling New York claims.
Initially published in the NYLJ