Damages Component of a Lawsuit Work.
If you or a loved one has been hurt or injured as a result of any type of accident, whether it is a vehicular accident, slip and fall, or any accident, including off shore, you might be wondering if you are entitled to damages for your aches and pains, and if so, how to go about filing a lawsuit for personal injury.
Once you have made the decision to seek legal assistance, you might begin to wonder how much your lawsuit case is worth. The answer to that question is reduced to the word “damages.” An experienced attorney will be able to help you with this question, figuring out what your injuries are worth, include what they have cost you monetarily, physically, and mentally, as well as what the future residual damages will be. In other words, will you be able to return to work, if, how long will you be out of work because of the accident.
There are two parties to a civil lawsuit. The injured party is the plaintiff and the defendant. There might be multiple parties for both categories. The party filing the lawsuit for damages is the plaintiff. The person or company that will be sued is the defendant.
In a personal injury case, money damages are paid (awarded) to the plaintiff by the person or company who is found to be legally responsible for the accident. In some cases, the lawsuit can be settled out of court and a damage award can be agreed upon after a negotiated settlement among the parties, their insurance companies, and their attorneys; this may be accomplished directly between attorneys representing both parties, or with a mediator.
A mediator is an independent third party brought in to “mediate” between the parties and help both parties come to an agreement on the terms of the settlement. Of course, in cases where an agreement cannot be reached between the parties, the case will go to a trial. A civil trial can be a jury trial or a judge trial and both parties will come to agreement as to which. In cases where the case has gone to trial, either the judge or the jury will determine the amount awarded to the plaintiff.
Compensation in Personal Injury Cases
Compensation in personal injury cases is the amount intended to compensate the injured party or plaintiff for losses suffered due to the accident or which prompted the lawsuit to be filed.
Some Compensatory Damages are easier than others to quantify, for example, it is easy to show the cost of damages to property, or the cost of medical expenses incurred by the injured party. What is not as easy to quantify, is the pain and suffering that often accompanies an injury. It is often difficult to express in dollars and cents the inability to carry on with activities that were possible before the accidents, or the physical limitations that might be present after the accident. Often these physical limitations will linger for a long time and may in fact become permanent disabilities.
Compensatory and Punitive Damages.
There are two basic categories of damages awarded in personal injury claims.
They are known as Compensatory and Punitive.
Although there are many different forms of compensatory damages, they can be broken down into general or special damages.
Compensatory Damages seek to reimburse or compensate the injured party for the damage or harm they have suffered. These damages are present in almost all injury cases including auto accident, medical malpractice, and slip and fall cases.
Compensatory Damages are divided into two categories Special and General.
A compensatory award for damages is the compensation awarded to the injured party (plaintiff.) This payment is meant as an attempt, to the degree possible, to make the injured party whole again; at least from a financial standpoint. To accomplish this, a dollar figure must be place on all aspects and/or consequences of the accident or injuries.
Compensatory Damages are also awarded in wrongful death cases. Compensatory damages in this type of case are often unique to the case.
Wrongful Death Damages
In the case of a Wrongful Death, the lawsuit or claim will request damages for surviving family members and loved ones. The most common wrongful death damages include:
Cost of medical care prior to death
Funeral and burial expenses
Loss of financial participation to the family or in some cases to a business
Emotional anguish of the surviving family members
Loss of contribution and support to the family and loved ones
Loss of companionship and consortium
Special Compensatory Damages
Special Damages compensate for expenditures incurred because of an injury caused by the accident. Each case is different; therefore, theses compensatory damages are unique to each case. The award of special damages is designed to make the plaintiff whole and compensate the party for any costs incurred caused by the accident and/or injuries.
Special Compensatory Damages cover any expense or losses associated with the injury. Types of special damages are not limited in any way as they are unique to the injured party and individual case.
Some of the more common types of special damages are:
Loss of earnings
Loss of future earnings
Cost of future medical care
Expenses to the household
Costs associated with altered plans and or trips
General Compensatory Damages
General damages compensate the injured party for damages that are not of a monetary nature. They are referred to as general damages because they refer to harm that are usually associated with the injury sustained.
Some of the most common types of general damages are:
Pain and Suffering
Loss of consortium or companionship
Punitive Damages are specifically awarded in cases where the defendant conduct was judged to be particularly in cases where the defendant’s conduct is deemed particularly egregious or outrageously careless.
A personal injury plaintiff may be awarded both awards, that is compensatory and punitive damages award. The justification for Punitive Damages is completely different from the justification for Compensatory Damages. Whereas Compensatory seeks to “make the injured part whole.” Punitive Damages, seeks to punish the defendant for a particularly contemptible or appalling behavior. Although the monetary award goes to the injured party (plaintiff,) the goal is to inflict punishment the defendant conduct by inflicting pain in the wallet in the hopes that this will act as a deterrent. Because Punitive Damages may top tens of millions of dollars, most states have set caps on punitive damages that may be awarded in personal injury cases.
These damages will only be awarded to an injured plaintiff who has suffered as a result of when the wrongful behavior on the part of defendant which has been determined to be contemptible and/or or culpable.
For example: Punitive Damages may be awarded if the defendant has been found to have acted maliciously, recklessly or fraudulently. These acts may include aggravated battery, sexual rape or assault.
Fraudulent behavior that causes widespread financial harm may also give rise to Punitive Damages as in the case of financial investors that rip off small investors of their life savings by having promised sound investments in companies that did not exist at the time the investment was made.
There are also instances when we see a high-profile injury cases which revolve around a defective automobile, or a product that places the user at risk to health or life due to prescription drugs or defective implants. Juries have in the past awarded large punitive damages against defendants who have produced or manufactured the defective
Common Compensatory Damages in Personal Injury Cases.
- Medical Treatment. An award for personal injury almost always includes the cost of medical care associated with the accident. In other words, the cost of medical treatment that has already been received will be paid as part of the award received as well as an estimate of future medical costs that will be required because of the accident.
- Income. The injured party (plaintiff) may also be entitled to compensation for the accident’s impact on salary and wages. This will include not only past wages lost dues to the accident, but also money that may not be earned in the future because of the accident, income that would have been earned but for the accident. Lawyers refer to this as “loss of earning capacity.”
- Pain and Suffering. Compensation for pain and serious distress suffered during the accident and immediately thereafter as well as any ongoing pain that may be attributable to the accident may also be considered.
- Emotional Distress. This usually part of serious accidents. Emotional distress damages are designed to compensate a personal injury plaintiff for the psychological impact of the injury. Emotional stress may include anxiety, sleep loss or fear. Some states consider emotional distress to be part of pain and suffering damage awarded to a plaintiff in a personal injury case.
- Property Loss. Reimbursement is also possible for any vehicles, clothing, or other items of value that were destroyed, damaged or lost because of the accident. Full reimbursement at a fair market value of the property lost, and/or repairs may also be part of the compensation.
- Loss of Enjoyment. Whenever injuries received as a consequence of an accident keep a person from enjoying, or pursuing, day to day activities, such as exercise, recreational activities or hobbies, the injured party (plaintiff) may be entitled to receive was is known as: “loss of enjoyment” damages.
- Loss of Consortium. In personal injury cases, there is a form of damage to the plaintiff known as “loss of consortium” damages. These usually refer to how the accident has impacted the plaintiff’s relationship with their spouse. The Loss of Consortium may include loss of sexual relationship, companionship or joint activites that were previously enjoyed by the couple. Some states also consider the injuries impact on the relationship between the injured parent and their child. In some instances, Loss of Consortium damages are awarded directly to the affected family member rather than to the injured plaintiff.
A Plaintiff’s Conduct after the Accident May Impact Damages Award
There are instances in which the conduct of the injured party (plaintiff) might have played a role at the accident or afterwards. It is possible that the court may determine that the plaintiff´s actions or inactions, before or after the accident contributed in a measurable way to the extent of the damages.
- Comparative Negligence. If the plaintiff is found to bear some responsibility in the accident or the injuries suffered, even only partially, then a portion of the award may reflect the portion of responsibility assigned to the plaintiff. Most states adhere to a “Comparative Negligence” standard that links damages to percentage of fault in a personal injury case.
- After the Accident – Failure to Mitigate Damages. Most states specifically expect a plaintiff involved in personal injury cases to take reasonable steps to “mitigate” (minimize) costs associated with the accident. The injured party is expected to take reasonable steps to insure that the cost of treatment and after the accident is reasonable and is also expected to mitigate costs within reason to avoid a reduction in the awards due to failure to mitigate damages.
- Contributory Negligence. A few states follow the concept of “Contributory Negligence” for personal injury cases. In other words, you might not be able to recover any compensation at all if it is determined by the judge or jury that you are partially to blame for the accident.
Collecting Damage Awarded
A plaintiff, who has received damages awarded as a result of a personal injury claim, will receive the funds once the settlement has been reached or after a judgment (award) in court has been determined by the judge.
Awarding damages and collecting the funds are two very different things.
Defendants who are required to pay a damage award may or may not be able to satisfy the entire sum awarded to the plaintiff, or might simply be unwilling to pay, period.
Here is where a savvy attorney with a strong law firm can make things happen. The plaintiff’s attorney can expedite the collection process by discovering assets previously undisclosed and placing liens on property. Garnishing wages or earnings is another option.
As a motivator to the defendant, the plaintiff´s attorney would have also made sure that the defendant has to pay accruing interest on all unpaid monies associated with the award. Also, in cases where the defendant responsible for paying damages has liability insurance, it will then be the insurance company who will have to pay the damages award or settlement up to the liability limits.
Remember, this is not intended as legal advice; instead we seek to provide you with a general idea of what can happen during the legal process.
We Urge to Seek Legal Representation Immediately
If you or a loved one have been involved in an accident, and were hurt or injure seek legal assistance right away. There are specific deadlines that must be met in order to file a successful lawsuit on your behalf. Contact a personal injury attorney right away.
Make no mistake it is important to have effective legal representation when you are trying to file a lawsuit against a company or an insurance company. Seek legal counsel right away. A skillful attorney can help you navigate the personal injury justice system and obtain the best possible outcome in your case.
At The Law Firm of Regan & Sandhu, P.L.C., our primary interest is to provide you, our client, with excellent representation. The information we provide for you here is not intended as legal advice, but it is a merely informational.