If you are in an auto accident, and not at fault, you are entitled to recovery for the damages caused by the other party’s negligence. There are many common misconceptions of what damages are, and what types of damages one is actually “entitled” to, versus those damages that must be proved and negotiated at length.
Damages are defined as “money claimed by, or ordered to be paid to, a person as compensation for loss or injury.” (Blacks Law Dictionary, Thomson West; 8th edition (June 1, 2004)). “Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong.” Frank Gahan, The Law of Damages 1 (1936). In other words, damages are the harm actually caused by the wrongful or negligent act. For example, if you were in an auto accident, and your car was totaled, one category of damages would be the totaled car. The compensation for your totaled car would be monetary payment of the fair market value of your car. Another example would be injuries that require medical treatment. The compensation for your injuries would be payment of the medical bills that result from reasonable and necessary treatment for the injuries you sustained, and pain and suffering you endured as a consequence of said injuries.
Types of Damages
There are two basic types of damages: actual damages (also called compensatory, tangible, real or special damages) and general damages.
Actual Damages. Actual damages are those which are proven, at a certain monetary amount, to have been incurred as a result of the wrongdoer, or negligent party’s actions. The goal of compensating for actual damages is to put the injured person in a position he or she was prior to the incident. These damages are distinguished from general damages because usually, there is a physical bill that would otherwise not exist such as:
- Medical bills: Including ambulance transportation, hospital stays, x-rays and other diagnostic testing, physical therapy, chiropractic treatment, surgery, etcetera
- Prescriptions for medications required due to injuries sustained
- Future medical treatment
- Funeral expenses
- Cost of repairing a vehicle
- The value of a totaled vehicle
- Loss of earnings
General Damages. Unlike actual damages, general damages do not come with a clear bill detailing the cost and amount of compensation. General damages are those that the law presumes follow from the type of wrong complained of (Blacks Law Dictionary, Thomson West; 8th edition (June 1, 2004)) such as:
- Pain and suffering
- Psychological and mental effects
- Loss of promotion or employment opportunities
- Future lost earnings
- Loss of consortium
- Costs and pain associated with permanent injury/disability
What Damages are you Entitled to
With actual damages, that can be proven to a degree of certainty (i.e.; submitting the bill) one is only “entitled” to those that are the natural and direct result of the at-fault party’s negligence. For example, if your vehicle was in a previous accident and sustained damage to its front bumper, and in the accident for which you are claiming compensation for, you were rear-ended, you are not entitled to have your front bumper fixed. The reason being, the damage to your front bumper was not caused by the negligence of the other driver. Causation is a very complicated legal issue and cannot be simply explained. An experienced attorney will be able to lobby on your behalf as to what harm was actually caused by incident in question. Without an attorney, an insurance adjuster will most certainly find a compelling argument against paying for damages that may have some other explanation as to how they raised.
A common misconception is that the at-fault party must pay all medical expenses associated with the injuries they caused. In reality, a person is only entitled to reasonable and necessary medical expenses. What this means is that whatever your injuries are, there is a standard customary charge and length for treatment of those injuries. If you over-treat, or go to a doctor who is charging way more than the fair value of his services, you may not be entitled to full payment of that bill. Again, this is a complicated area of law and you should consult an attorney who can explain to you what you will be compensated for.
Another common misconception is that an injured person is entitled to a certain amount of pain and suffering. About 90% of the time, an insurance adjuster will not offer to pay any pain and suffering. You are only entitled to pain and suffering that you can prove to have resulted from the injuries sustained. It is very unlikely that based on your word alone you will be able to convince an insurance company that your suffering is worth a great deal of money. Of course, the greater the injury, the more pain and suffering will result. As such, the pain and suffering related to soft tissue injuries (tears in the muscles, “whip-lash,” strain/sprain), will likely be valued at a smaller monetary amount than the pain and suffering associated with significant injuries (i.e.; broken bones, head injuries, death).
Pain and suffering includes the actual pain resulting from the injuries sustained, the effects on one’s life and limitations caused by pain, the adaptations one must make to accommodate their limitations, and all of the events, activities, and daily errands that cannot be completed due to pain.
Most importantly, there is no formula for the value for pain and suffering. The monetary compensation for pain and suffering is all debatable. An individual may value his pain and suffering at $100,000.00 where realistically, the insurance companies and the courts will value his pain and suffering at $2,000.00. How do you know how much you should be compensated for your pain and suffering? Hire an attorney; ask what is the usual compensation for pain and suffering associated with the types of injuries you endured? You attorney is in a much better position to fight for your right to compensation for this suffering than you are because an experienced attorney knows what issues to present to the insurance adjuster, how to present it, and how to negotiate on your behalf so that that suffering does not go unaddressed.
