Your claim should account for the full value of your injuries
An injury that occurred in a moment of pain can reverberate across the victim’s entire life. It’s not just the initial medical treatment. It’s the long-term effects on your career, your family, and your future. It’s the pain you may have to live with every day, the inability to get on your knees to play with your children or enjoy quality time with your spouse.
Health has tremendous value, and the law acknowledges that value. If your health has been harmed because of someone else’s negligence, you can and should be compensated for the full value of what you’ve lost.
Understanding compensatory damages
Most personal injury claims are for compensatory damages, which as the name implies is financial compensation for the losses you’ve sustained due to the injury.
Compensatory damages can further be divided into two categories. Economic damages are compensation for objectively verifiable monetary losses – that is, things that directly cost you money, whether as expenses, lost assets, or lost income. Some examples of economic damages include:
- Medical expenses, including ambulance fees, hospital bills, medication, medical devices, and medical procedures, such as surgery. Your personal injury claim should include every medical cost associated with the accident, even costs that have not been incurred yet. For example, if you hurt your knee and a doctor can ascertain that you may need a knee replacement as a result of the injury, that future knee replacement should be accounted for in your compensation.
- Lost wages and lost future income if the injury has rendered you unable to work, whether temporarily or permanently. For instance, if you were out of work for a few weeks recovering from your injuries, you should be compensated for the wages you lost during that time. If your injuries will permanently reduce your ability to work, an expert witness, such as an economist, may be needed to calculate your probable future earnings with and without the injury, and you can seek compensation for the difference.
- Replacement services such as cleaning, childcare, yardwork, and home maintenance that you are no longer able to perform because of the injury. If you need to hire someone or have a spouse or family member stay home to perform those tasks, that cost needs to be accounted for.
- Modifications to your home or vehicle to accommodate a disability or assistive device, such as a wheelchair.
- Property damage to your vehicle or any other personal property that was damaged in the accident. This also includes the diminished resale value of your car after it is repaired.
Non-economic damages are more subjectively determined losses – but they are no less real. They are based on the ways the injury has affected your life, your family, and your future. Some examples of non-economic damages include:
- Pain and suffering, mental anguish, and emotional distress. Pain is highly personal, but it can be substantial, especially if you have a permanent injury that causes chronic pain. Daily activities that healthy people take for granted can become painful and even impossible after a permanent injury.
- Lost quality and enjoyment of life if you are unable to enjoy hobbies or live the same active lifestyle that you had prior to the accident.
- Loss of consortium, a legal term for damage to the intimate relationship between spouses (and in many states between domestic partners, as well). Some states also allow loss of consortium claims for loss of care, nurturing, and affection between a parent and child because of the injury.
This is not an exhaustive list, and the specific damages you can claim vary from state to state and even between different types of incidents in the same state, depending on how the applicable statutes are written.
Can you get punitive damages for a personal injury?
Punitive damages, known as exemplary damages in some states, are designed to go beyond simple compensation and punish the defendant. These damages send a message and create a particularly harsh civil penalty for extremely reckless or intentional acts. The specific rules pertaining to punitive damages vary from state to state, but in general, they require “wanton and willful” misconduct; that is, the person who caused the injury knew that there was an impending danger to others and still failed to act with reasonable care.
Punitive damages are rare, but they can be awarded in personal injury claims for incidents caused by particularly egregious behavior. For example, if we can prove that the defendant knew they were very drunk and still got behind the wheel of a car, it may be possible to seek punitive damages. In a premises liability case, punitive damages may be awarded if the property owner knew of an imminent danger on their property and recklessly failed to have it repaired or warn people on the premises of the danger.
The role of insurance in personal injury damages
Whatever the value of your losses may be, there is a second, practical limit on the value of any personal injury claim: the funds available to pay that claim. Liability insurance policies come with policy limits, and if the damages exceed the policy limits, it can become much more difficult to recover full value for the injury.
There are several potential paths forward in this situation. First, there may be multiple insurance policies available to cover a particular injury, some of which may not have been known to the injured person initially. For instance, there might be multiple defendants, or one of the defendants may have had an umbrella policy. An attorney can investigate, find the additional applicable insurance, and when necessary, coordinate coverage to minimize overlap and maximize the amount of compensation that actually reaches the injured person.
Second, there are situations in which an insurance company can become responsible for damages in excess of the cap on the policy. For instance, if the insurance company acts in bad faith – say, by refusing to pay a fair settlement for an amount at or below the policy limits – then it can become responsible for the full amount of the claim.
Third, it’s possible to seek compensation from the at-fault party’s assets. For instance, if your damages are $115,000, and the available insurance is only $100,000, you can try to get the at-fault party to pay up the remaining $15,000 from their own assets. Whether that actually works, of course, depends very much on whether they have assets to begin with.
Finally, in circumstances where there is not enough available insurance, an attorney may be able to take other steps to increase the net value of the final recovery, such as structuring a settlement to provide payments over time or negotiating with medical providers to reduce the amount billed.
An experienced personal injury attorney can maximize the value of your claim
Remember, when you’re injured in an accident caused by negligence, the insurance company has one goal in mind: to protect their bottom line by paying out as little as possible. It’s critical that you have legal representation from an attorney who knows how to find and advocate for the full value of your case. If you’ve been injured, contact a personal injury attorney in your area today.
The Swanson Law Group is a personal injury law firm in San Jose, CA.
