If someone is injured in an auto accident they are entitled to receive money from the person at fault in the form of damages. There are many different types of damages one can recover money for. It is important to understand the different types and what needs to be proven to get recovery for each. When dealing with auto accidents we are almost considering types of monetary damages. This means the more damages someone is awarded the more money they can receive. Therefore, one needs to understand what types of damages they can recover for, and how much they can expect for each one.
The general idea of damages is to return the injured person, if they were not at fault, to the position they would have been in had they not been injured in the first place. Of course, if someone has been permanently injured, disfigured, or lost a life due to an auto accident there is no way one can ever be returned to the same position had that accident not occurred. In situations such as these, the law requires a monetary value to be given for the person’s loss.
Sometimes the amount of damages one is able to receive for an injury can be difficult to determine. It is important to understand that an “injury” to a party is not limited to physical injury.
In addition to physical bodily injury, “injury” can mean almost any loss that was a result of the accident, such as destruction to one’s vehicle, lost wages for the time a person could not work, past and future medical expenses, and occasionally trauma caused by a person’s pain and suffering. The main types of damages that can be recovered in an auto accident are:
The best way to know what damages one might be entitled to is to know what is considered a loss and what must be proven in order to recover for them. Therefore, we need to more closely examine each of these types of damages.
One of the most basic and understandable types of damages a person can recover for is damage to their personal property. In the case of an automobile accident, this would primarily be the damage caused to one’s vehicle. However, it could include damage to other personal property as well if the damage was also caused by the accident. For example, this could include other personal belongings, like golf clubs or jewelry, which were in the vehicle and damaged due to the accident. Not surprisingly, the amount of property damage one can expect to recover for is the total amount of property loss caused as a result of the accident. Any property that was destroyed as a result of the accident should be compensated for, but putting a value on one’s property loss is more complicated.
Determining the actual amount awarded for property damage depends on if the property was destroyed, if it is repairable, and if there was a loss of use of the property for any period of time. The normal value of recoverable property damage is the “fair market value” of the property if it was totally destroyed, or it decreases in value if it was partially destroyed. Again, it is important to remember that when dealing with auto accidents, one’s property damage is usually limited to their vehicle.
The fair market value for a vehicle that is totally destroyed or so badly damaged the cost of repair exceeds its value, is the value of the vehicle prior to the accident minus its salvage value. The salvage value is the estimated resale value that the destroyed vehicle can be sold as scrap for. Let’s say Bob owns a truck worth $20,000, which was damaged so badly it could not be repaired but could be sold for a salvage value of $2,000. Bob would be entitled to $18,000 in property damages.
On the other hand, if the property can be repaired, then damages are measured by the cost to repair or restore the property. Usually this is simply determined by the actual cost of repairs that have been made or still need to be made. Alternatively, it can be calculated by taking the difference between the value of the vehicle, or other property, before and after the accident occurred. Usually, whichever figure is greater and in the injured parties best interest is the one used to determine the amount of damages. For example, Carol had a car worth $30,000 which was partially damaged in an accident. If the cost to repair the car was $5000 but the value of the car was only reduced by $2,000 Carol would be granted the greater amount of $5,000 to repair the car.
It is important to know that when calculating the cost to repair or replace property, there are additional expenses that can be included besides just body and mechanical repair. For example, if a piece of property is not totally destroyed the person is entitled to damages for loss of use during the time it is being repaired. In the case of a car, the loss of use is valued at the cost of a replacement rental car for the amount of time the car is not useable. This is because property damage doesn’t just include the cost of physical repair but all other associated costs of replacement as well. Some types of costs that can be part of a property damage award are:
Just like all other damages, for property damages to be awarded they must be proven. This can be done through the use of repair estimates, bills, and other documentation. For this reason, it is important to keep all relevant documents related to the repairs and other costs associated with the damaged property.
The major area of damages associated with an auto accident personal injury case are ones relating to the physical injury of a person or persons involved in the accident. There are many types of damages that can be the result of a physical injury to a person. If someone, who was not at fault, has been hurt in an auto accident, the injured person should seek that their medical expenses be paid for by the person at fault. However, there are many other effects of someone being injured to consider than just medical costs. Depending on the severity of the injury a person may not be able to earn a living for themselves, may no longer be able to engage in pleasurable activities, or can have serious amounts of pain and suffering. These are all things that damages can be awarded for when a person has been injured in an auto accident. Some of the different types of personal injury damages include:
For someone that has been badly injured in an auto accident, it is important to consider the full cost of their recovery and work to obtain everything they deserve. Not all types of personal injury damages are available in every case. There are several things that must be considered for each type of damage to understand when they should be sought after.
If someone has been injured in an auto accident, they can be awarded damages for medical expenses they have already incurred and are likely to incur in the future. It is important to consider the full scope of recovery because, depending on the type and severity of the injury, one can have long lasting medical expenses. For example, if Stacy breaks her hip and cannot walk, it may require years of physical therapy, future surgeries, and medical attention for her to fully recover. For this reason, Stacy should seek recovery not just for her medical costs accumulated at the time of her case, but any probable expenses that will likely occur even years into the future. Some types of medical expenses an injured party can recover costs for are:
Medical costs for serious auto accident injuries can quickly add up. The full value of this should be considered in determining the value of a medical expense damage award. It is also important to consider what one needs to prove in order to recover those costs.
First we must consider what needs to be proven in order to recover for medical expenses that have already been incurred by the injured person. The injured person must prove the medical treatment given, which they are seeking reimbursement for, was necessary based on the trauma suffered in the accident. That is to say, one can only recover when:
In many instances this may be obvious, but that is not always the case. Let’s say Alex and Ben are passengers of the same car involved in a collision. If Alex breaks his leg in that collision, the emergency room cost to set and cast the leg would obviously be both necessary to treat his leg injury and incurred due to the accident. If Ben goes to the doctor a week after the collision complaining of shoulder pain, it may not be as obvious what the cause of his injury was. Additionally, if Ben attends two years physical therapy for his minor shoulder discomfort, the opposing party may argue that this amount of treatment was not necessary based his injury.
Although a party can recover for medical expenses due to their auto accident injury, there are limits to what can be recovered, especially without further proof. Some things that can be used to prove that a person’s medical expenses were necessary and caused by their auto accident are:
Medical bills are necessary and relevant to show the cost of medical services and that the services were actually performed, but medical bills alone are not enough. They do not show whether the medical treatment given was necessary or related to the injury caused by the accident. One of the best ways to prove the validity of a claim for past medical expenses is testimony from the injured person’s doctor. The person’s doctor can attest to the nature and extent of their injuries, the treatment given, and the need for such treatment.
A doctor’s testimony, however, should not be the only thing relied on to prove medical expenses. Medical and hospital records are important for proof because they document the diagnosis and treatment of the patient. They often can be used to verify that the medical services, supplies, and medication being sought compensation for were in fact given and reasons they were given.
While proving the medical expenses were actually incurred is important, proving the costs were reasonable, the services were needed, and the injury was caused by the accident is more important. Some of the things defendants will often try to argue are that the injured party continued to take treatment after the symptoms and conditions were resolved, they did not seek prompt treatment, the injury was a pre-existing condition, or that the injury was not caused by the accident.
As touched on in the example above with Ben, a person who has inflated medical expenses because they continue to seek treatment long after the injury is healed will have a harder time recovering damages than a person that has a genuine need.
In the previous example, if Ben sought to recover the cost of two years of physical therapy for his minor shoulder discomfort, he could be accused of malingering with his treatment, and risk not recovering the full cost of his therapy. However, if there was a genuine need, there are many ways to prove the treatment was necessary.
Seeking prompt treatment is also vitally important. A person is not allowed to recover medical costs that could have been avoided by a reasonable effort of the injured person. That is to say, if an injury is aggravated or made much worse because the injured person refused to seek medical attention, then they put themselves at risk of not recovering the full cost of their medical treatment. Going back to Ben, let’s say that instead of one week, Ben waited three months to see a doctor about his shoulder. Also, in that time his minor injury turned into a major one because he continued to lift heavy boxes at work since he did not consult a doctor to tell him otherwise. If he now needs major surgery for the injury, he may not be able to recover all of his medical costs, because his delay contributed significantly to the severity of the injury. Although some symptoms may not appear for weeks or even months later, it is important to seek prompt treatment at the time one becomes aware of their injury. It is also recommended to have a full physical checkup after a collision even if you don’t have any obvious symptoms. Early diagnosis is your friend.
As a general rule, costs associated with an injury existing prior to the time of the auto accident are not recoverable, though there are certain situations that this is not entirely true. Defendants will often argue medical costs should not be paid if the injured party suffered past injuries that were of a similar nature. This is based on the argument that the injury could have been a pre-existing condition. A pre-existing injury would not be the result of the accident, and therefore not recoverable. Let’s say Ben had suffered a shoulder injury in the past, and, since being in his auto accident, has claimed of shoulder pain. Defendants will argue that his shoulder injury already existed at the time of the accident and therefore was not caused by it. A defendant will argue that his current medical expenses were only necessary because of the previous injury and that there would not have been a need for his medical treatment if it were not for his pre-existing shoulder injury.
This argument can be countered by showing that the person had fully recovered from the injury prior to the accident or by showing that the earlier injury was aggravated or worsened as a result of the accident. This is to say that even if there was a pre-existing injury, if the injury was made worse as a direct result of the accident, the injured person can recover the medical costs associated with that aggravation. If Ben’s shoulder injury was fully recovered prior to the accident, or not fully recovered but worsened because of it, the at fault party is responsible for his medical costs. This is true even if a healthy person in the same situation would not have been injured. Even though Ben’s shoulder is more sensitive to injury because it had not fully healed, this is not an excuse to not to pay. Although a previous injury is not the direct responsibility of the person at fault, they must take the injured person “as they find them.” This means they are responsible for any further injuries caused to that specific person, in this case Ben.
Sometimes if an injury is very severe, an injured person can be entitled to costs related to future medical expenses. Some injuries can have life-long medical costs associated with them. A person is entitled to costs for future medical expenses if it is reasonably certain future medical expenses will be required. The need for future medical coverage can be difficult to prove, and much harder to value. The need can result from the original injury or from an increased susceptibility to future injuries. Since these costs are highly speculative, it can sometimes be difficult to show that the need is highly likely, but it can be proven with supporting medical testimony and estimations of their likely cost.
If James is hit by a tractor-trailer and is temporarily disabled, it will likely take years of therapy and possibly future surgeries for him to walk again. In a situation such as that, it should not be difficult to show the need for future medical expenses. Every injury is different, and it can be difficult to determine the need, especially when dealing with less severe injuries. Although this need may not be as obvious for all injuries, it is important to know this type of relief is available.
There are several broader impacts of being injured in an accident then just the medical costs. One of those things is a person’s possible inability to earn a living. If an injury has prevented someone from working for a living, then the injured person is entitled to recover damages for time lost from their job. The amount of money that can be recovered for being out of work depends on how long of a period they could not work for, whether they are ever able to work again, or if they will not be able to work in the same capacity as they previously had. A person’s inability to earn a wage or earn the same wages as prior to their injury is usually classified into three types of damages: past lost wages, future lost wages, and impaired earning capacity.
An injured person that was employed at the time of their accident is entitled to recover damages for wages, commissions, bonuses, tips, etc. they are unable to collect because of absence from their job due to injury. For example, if Greg has missed three months of work at his construction job due to his auto accident related back injury, he could be able to recover those lost wages. The amount of past lost wages does not need to be proven to a mathematic certainty, but must be well established by the evidence. To establish the amount of lost wages Greg is entitled to, several things can be used which include:
In addition, the amount of time the injured person is out of work must not be excessive for the injury, and must be shown to be medically necessary. This means that the length of time Greg has missed work due to his back injury must be proportionate to the severity of that injury.
For a person that is self-employed, the amount of lost past wages can be more difficult to determine, depending on their type of self-employment. In these cases, damage awards for lost wages may be made proportionately to the lost profits or reduced earning capacity of their business. Since a business might still be able to generate income for the injured party even though they are not able to work, the amount of recovery for lost profits will be very dependant on the injured party’s personal effort required to generate profits for their business. For example, if a self-employed doctor is injured and unable to see patients, his practice will likely not be able to generate much income without his personal efforts. On the other hand, a restaurant owner, who merely oversees the operation if his restaurant may not suffer as much lost profits, and therefore will have a smaller claim for recovery.
It is important to note, with lost past wages as well the other types of damages for lost or reduced wages, even an unemployed person can still recover in limited circumstances. A person who regularly works but is unemployed at the time of their accident is entitled to damages for wages he or she could have otherwise earned. That person still has a burden of proving what their earnings would have been and that they would have likely been employed in the near future if not for their injury.
When a person has been injured so severely they will never be able to return to work or not return for a long time, they can recover compensation for their future lost wages. Damage awards for future lost wages are more difficult to prove because they are inherently speculative. One must do more than show a difference between the injured persons income before and after the accident. It must be shown instead that the persons EARNING CAPACITY has been reduced. This means the award is not based on whether the person has been working since his or her accident, but whether they have the ABILITY to work moving forward.
For example, it is not enough to show that Greg has not been working since his injury. To make a valid claim one must medically show why Greg will not be able to work in the future. It does not need to be a permanent inability to work or the inability to work any job. If Greg will likely be out of work for an additional six months, he can make a claim for six months of lost future wages. Let’s also say Greg is a skilled carpenter, but due to his injury he cannot work as such. Instead, he is limited to working as a check out clerk and earns much less money. He can
make a claim of lost future wages for the difference in income he can no longer receive until he is able to return to work as a carpenter. To recover for future lost wages, one must show they are no longer physically able to work for a period of time, or due to the injury they must take an alternate type of work that does not earn as much as their previous income.
Some factors to consider that determine the amount of damages for lost future wages include:
To prove the need for lost future wages, it is important to medically show the amount of time required for recovery, if full recovery is ever likely, and the length of the medical treatment that is keeping the person from working at their job. This is important because if the injured party is not permanently disabled, the amount of time the person is unable to work is often a point of contention among the parties. If the injured party is able to take alternative employment, lost future wages are available if that type of employment does not pay substantially the same amount.
If the person is unemployed at the time of the accident, it does not completely bar them from recovering lost future wages. If one seeks to recover, they have a high burden of proving they had the intent to find employment. Previous work history can be used to prove the intent of the unemployed individual to find work. If the injured person has no work history and no explanation for their unemployment, they are not likely to recover for lost future wages.
While it is not attainable for all types of injuries, it is important to know this type of recovery is available for more seriously injured persons that cannot return to work for a longer period of time.
The damage award for impaired earning capacity is similar to that of lost future wages. It is available when an injured person is not able to earn the same income that they previously could prior to being injured. Impaired earning capacity is broader way of compensating for lost future wages and includes one’s inability to advance to an alternative career or better-paying position.
Even if an injured person is able to return to his previous employment and earn the same amount of money as before their accident, they can be awarded damages for impaired earning capacity if they are unable to advance in their career due to their injury. For this reason, an injured person’s actual income is not the determining factor for impaired earning capacity.
Let’s say Allen is an engineering student who was working part-time as a landscaper to pay for school. If Allen suffered a head injury in an auto accident that prohibited him from ever being an engineer, his future salary as an engineer could no longer be earned. This means his future earning capacity would be greatly impaired. In this way, the value of one’s impaired earning capacity can be difficult to predict. Unlike lost past wages, it is based on the earning capacity of the individual before and after the accident occurred. To establish this, one would have to consider how much the injured person’s condition disadvantages them in the workforce.
Impaired earning capacity can also include a person’s chance of promotion or transfer to a hiring paying job. If a person missed out on a promotion because of absence from work, then a claim for impaired earning capacity can be made. Another situation is if they are unable to move to a higher paying job because of a physical disability caused by their injury. It is important to know that this sort of impairment must be related to a specific situation, and not mere speculation of a better paying position. It must be shown that a specific position was available and, if not for the injury, the person would have very likely been able to achieve the position based on their capabilities and qualifications. Mere speculation that one will not be able to obtain a promotion or better job in the future because of injury is not sufficient in this case.
Just like with promotions, the inability to achieve future career goals they were specifically being pursued. In the case of the engineering student, it would be easy to prove he was pursuing a different career. However, if he had not yet entered school and was still able to work as a landscaper, it would be much more difficult for him to recover for impaired earning capacity.
Another type of damage that an injured party can seek compensation for is the pain and suffering the person will endure as a result of their injury. This is generally the component of the personal injury claim that has the greatest value. The amount of damages that can be obtained depends on the severity and duration of the injured persons pain and suffering. There are several types of ailments someone can suffer from besides physical pain that can be considered a component of pain and suffering. Some things included in pain and suffering besides physical discomfort and trauma are:
To recover for pain and suffering, it must have been as a result of a physical impact. This means that, although the injury does not have to be major, pain and suffering must be the result of a bodily and not emotional injury. If one was only a witness to an accident, there is no recovery for any perceived pain and suffering for witnessing the accident, except under extreme situations, which will not likely apply with automobile accidents.
In order to recover for this type of damage, the different aspects of the person’s pain and suffering such as the location, frequency, nature, and type of suffering must be specifically shown. Since pain and suffering is highly subjective, it must be shown in as much detail as possible, otherwise an injured party risks being perceived as over exaggerating or making up their suffering. The injured party should be able to describe the nature (sharp, dull, aching, cramping, etc.), length (constant, intermittent), aggravating conditions (weather, particular movements, fatigue), and objective symptoms, if any (headaches, nausea, insomnia, limping). Since legal cases often move slowly, it is a good idea to keep a diary of the pain and suffering endured in case the person later recovers and does not remember the details of their injury. It is also a good idea to, whenever possible, take photos or videos of injuries, and the pain and suffering associated with those injuries. Since the person could later recover from the injury, it is good to have as much photographic evidence of the injury and related pain as possible.
A patient’s medical records, testimony from his doctor, and even testimony from friends, family, and other eyewitnesses can be used to try and prove a person’s pain and suffering. Since theses types of claims are hard to document, defendants will always try to argue against them. If someone were observed engaging in activities inconsistent with their injury, then it would significantly hurt their case. For example, if a person is found to have been lifting heavy boxes after claiming they suffered severe pain from a back injury, they would hurt their chances of recovering for pain and suffering. The same is the case for someone who claims to be humiliated about a bad facial scar they suffered, but were heard telling their friends that it didn’t bother them very much. As with the other more speculative damages, the need for this must be real and severe in order to be obtained, but it is important to know it is available to those that are greatly suffering from their injuries.
As with past medical expenses, if the injured person’s pain and suffering could have been avoided or reduced, but they did not seek prompt medical attention, then their damages for pain and suffering will likely be reduced accordingly. This means that if their condition worsened because they avoided seeing a doctor for several months, and the delay was the cause of the pain and suffering, they likely cannot recover. For that reason it is important to seek prompt medical attention, and well document one’s case for pain and suffering.
When someone has been injured, it may prevent him or her from participating in some of the same activities as they previously have. Damages for loss of enjoyment of life are similar to pain and suffering but instead, they are awarded for a person’s inability to engage in pleasurable activities as a result of their injury. The distinction between the two is with loss of enjoyment of life something is taken away from the victim, as opposed to the suffering from physical pain or mental anguish.
For example, if Stacy is a college student and was severely injured to the point where she was disabled, had to drop out of school, and move home with her parents, this could constitute a loss of enjoyment of life. Stacy would no longer be able to continue with her college life activities and would be greatly reliant on her parents. Therefore, in addition to the pain and suffering Stacy may endure, she also has a strong claim for loss of enjoyment of life, because of her inability to live her life as she could before.
In order to recover for this type of damage, the injured person would have to show that the injury was more than a mere inconvenience. The condition would likely need to be permanent and irreversible, and the loss would have to be an important part of their life. If Jack was only an occasional weekend golfer and could no longer golf due to injury, this is not likely considered a loss of enjoyment of life. Let’s say, on the other hand, Jack was an avid amateur golfer, who traveled to tournaments, took great pride in his golf achievements, and could show that golf was a big part of his life. If he then lost the ability to golf, it may be something he is able to recover damages for, if the condition is permanent and irreversible. Although the circumstances for this are not met in every auto accident, it is important to know this type of relief is available to those that can no longer participate in important activities.
When you make the important decision to file a personal injury lawsuit after your automobile accident, it is critical that you and your attorney list all the ways in which you and your family have been harmed. Your lawsuit is the only chance you will get to be compensated for that particular accident. Think about it as if you are making your weekly grocery list. You must list all of the ingredients you need to make all of your meals for the week, and then you make one trip to the store. You do not have time to go to the grocery store multiple times, so if you forget something, you must do without it. A consortium claim must be included in the list of damages your attorney requests from the court, or this claim is lost forever. A consortium claim is not the way you personally have been harmed in the accident. Instead, this claim is how your automobile accident affected your spouse and family.
A loss of consortium claim is another way of stating your accident and your injuries negatively impacted your family. A loss of consortium claim allows your family members to be awarded money for the harm and extra burden your accident caused them. Your accident and the injuries you sustained maybe caused you to miss spending quality time with your family, you might have been unable to provide financially for a period of time, or perhaps you were unable to do simple household chores like cutting the grass. All of these harms and burdens that your accident caused your family to experience are compensable in the same way that you are going to be awarded money for your personal pain and suffering.
The following people can bring a loss of consortium claim for damages they sustained from your automobile accident:
This list is limited. Only the people on this list are allowed to bring a loss of consortium claim under Louisiana law. This list does include adoptive relationships.
Much of your focus after your automobile accident was probably on treating your physical injuries and repairing the damage to your vehicle. The first priority of a personal injury suit for an automobile accident is getting you compensated for these harms and burdens. However, as discussed above, it is very likely that your family was also negatively impacted by your car accident. There are many adjustments your family probably had to make after your car accident. These burdens are compensated through a loss of consortium claim. A loss of consortium claim can be brought if your family experiences one or more of the following elements:
It is not enough that your family member was mentally upset or distressed about your automobile accident. While this is an understandable and expected reaction, there has to be something more for the court to award your family damages for their loss of consortium claim. A loss of consortium claim will be successful if your family members can point to specific instances where they experienced one or more of the elements listed above. For example, if you missed several of a child’s sporting events, this is compensable in a loss of consortium claim for loss of society and companionship. If your spouse was forced to do all of the household chores for a period, this is also compensable in a loss of consortium claim for loss of performance of material services. It is best to list as many specific facts where your life was negatively altered as a result of the car accident so that your attorney can fit these instances in the list of compensable elements above.
You cannot “marry into” a loss of consortium claim. What this means is that if you are engaged and your fiancé gets into a car accident, you cannot file a loss of consortium claim after you get married. Your loss of consortium award amount is also limited by insurance policies. The accident victim and the person claiming loss of consortium are generally treated together, as if they are one person, for the purpose of insurance policies and “per person” limits on damages. The final limit to remember on loss of consortium awards is that it is ultimately up to the judge or jury and how they are feeling on that particular day.
Loss of consortium damages are very discretionary, meaning that judges and juries can award a large staggering amount, none at all, or anywhere in between. Generally, judges and juries are not big fans of loss of consortium awards, and in many cases, loss of consortium awards are denied because after the accident the victim was able to spend more time with the family member who is claiming loss of consortium. With that being said, it is still wise to list all of the ways your family has been impacted by your auto accident so that your attorney can advise you on whether to file a loss of consortium claim.
Punitive damages are the only type of damage granted that are not based on any actual injury or damage to the injured person. Although rare, it is still important to understand what they are. Punitive damages are given in addition to other damages to “punish” the person at fault or deter others from engaging in similar actions. They are not granted based on damage or harm sustained by the injured person but based on the seriousness of the action of the at fault person. It is extremely important to note that in Louisiana, punitive damages are generally NOT allowed for in personal injury cases.
Punitive damages are important to mention because one of the few exceptions where punitive damages can be given is in the case of drinking and driving. They can be allowed when the person causing the accident had been driving while intoxicated. Courts allow it because drinking and driving show a reckless disregard for the safety of others. If the intoxication was the cause of the accident, then courts will sometimes add punitive damages in addition to the other damages, in order to more severely “punish” that person for driving while intoxicated. They are even allowed to award these damages when there has only been injury to property.
Although punitive damages are rarely awarded in Louisiana, if an intoxicated driver was the cause of the auto accident, there is a possibility that punitive damages will be given.
If you would like more information about your auto accident personal injury case, contact us. Our attorney and staff help people like you every day, and we welcome your call.
Parker Layrisson Law Firm