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PART 2 TABLE OF CONTENTS

3. Damages Recoverable In A Personal Injury Case

4. Damages Recoverable In A Wrongful Death Case

5. How Lawyers Determine Value Of Your Case

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3. DAMAGES RECOVERABLE IN A PERSONAL INJURY CASE

When a person has been injured due to the carelessness of another, the negligent party must pay for all necessary and reasonable medical costs associated with the injury. This includes: (1) paramedics’ fees; (2) the cost of an ambulance to transport you to the hospital; (3) doctors’ and hospital expenses; and (4) the costs of all medical services. The negligent party is also legally responsible for all of your future medical costs attributable to the accident. Additionally, if you need a wheelchair or a full- or part-time attendant, the guilty party must also pay for these.

You are also entitled to recover monetary damages for all of your lost wages past, present, and future. If you are permanently disabled from working as a result of the accident, the amount of your lost wages will be determined by what you would have expected to earn had you not been injured, including raises, bonuses, and promotions. That amount, however, will be reduced (“discounted”) to its current value. This means that the amount you would have earned during your lifetime will be reduced to a lump sum that, if invested, would yield how much you would have earned over the next 10, 20, or however many years you would have expected to go on working. If you are permanently injured but are still able to work, although not at your old job and not for the same amount of money you were earning, you are entitled to recover the difference between what you would have made and what you are actually making, your loss of earning power.

In addition to all medical-related costs and lost earnings, you are entitled to be compensated for your pain and suffering arising from the accident, as well as all psychological injuries you suffered as a result of the accident, which often must be supported by the testimony of a psychologist or psychiatrist.

economic-damages There are two types of damages that can be recovered: economic and non-economic damages. (You can also get a third type of damages— “punitive damages”—if you can prove that the person deliberately harmed you.) Economic damages include such things as: (1) past, present, and future medical expenses (bills from emergency rooms, hospitals, doctors, physical therapists, rehabilitation therapists, prosthetist, prostheses, wheelchairs, special beds, personal attendants, etc.); and (2) the amount of lost wages or lost earning power, whether the victim will be able to return to work or will have to be retrained for a different profession or occupation, or will be permanently unable to work.

non-economic-damagesThe so-called “non-economic” losses for which you can recover monetary damages include: (1) the intensity and duration of your pain and suffering; (2) emotional distress and mental anguish; (3) physical impairment; (4) grief (but not in wrongful death cases); (5) anxiety; (6) humiliation; (7) inconvenience; (8) fear, anger, and worry; (9) disfigurement; and (10) the “loss of enjoyment of life.” Loss of enjoyment of life covers things you used to be able to do but are no longer capable of doing. For instance, if a right handed father has his right arm amputated and is no longer able to play catch with his son, this is considered part of the loss of enjoyment of life and deserves to be compensated.

The amount of damages should not only compensate you for damages and injuries you have already suffered, but include compensation for future medical expenses, pain and suffering, new prostheses, complications, etc. Also considered in the amount of your monetary recovery are whether you were in any way responsible for the accident or your injuries (“comparative negligence”), and the amount of insurance and assets the party at fault has.

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4. DAMAGES RECOVERABLE IN A WRONGFUL DEATH CASE

When someone is killed because of another person’s carelessness (negligence) or deliberate misconduct, this is called a “wrongful death.” For instance, if a person is killed in an automobile accident caused by another motorist who ignored a stop sign, we call that a wrongful death since the death was caused by another person’s carelessness.

Who Can Sue For The Wrongful Death Of Another?

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The wrongful death of a person often affects many other people: a spouse, children, grandchildren, employers, friends, and so forth, but only certain persons are entitled to sue the wrongdoer for specified damages. If a 35-year-old married man with three children is killed in an automobile accident caused by another driver’s negligence, the spouse (widow) and his three children (the survivors) can all sue the negligent driver. If the man was supporting someone else, such as his elderly parents or a minor under 18, they can also sue to recover their monetary losses, i.e., the money they reasonably could have expected to receive from the deceased person had he not been killed.

What Types Of Damages Can The Survivors Sue For?

The monetary damages that the jury may award the survivors in a successful wrongful death lawsuit are those that “under all the circumstances of the case, may be just.” The survivors are entitled to sue for any and all medical expenses that may have been incurred in attempting to save the victim’s life, if such damages have not been recovered in a “survival action.” The survivors are also entitled to sue for the lost wages and earnings that the decedent would have contributed to the household during his working years, including taking into account raises, bonuses, promotions, and any other types of compensation he would have received from his employer.

Suppose that instead of a 35-year-old working man, the person who was killed was the stay-at-home wife/mother. Since she wasn’t working at a paying job, can the survivors seek compensation for “lost earnings”? In the case of a non-working spouse who stays at home and takes care of the children and house, the surviving spouse and children are entitled to receive full and adequate compensation for the loss of services the decedent would have contributed to the household. Studies show that it would cost in the area of $100,000 to hire persons to take the full place of the deceased parent or spouse. For example, who would make the family’s meals, get the children ready for school, go shopping for groceries or clothes, do the laundry, prepare the meals, take the kids to dance rehearsals or Boy Scout meetings, etc.?

The survivors are also entitled to sue for monetary damages for the loss of such things as comfort, society, and advice of the decedent. The widow can also sue to recover damages for “loss of consortium,” which includes such things as loss of intimacy and sexual relations. Note, however, that the survivors are not entitled to any damages for their grief and sorrow due to their loved one’s death.

Although each heir’s loss will be different from the others, only one wrongful death lawsuit may be filed. The heir filing the lawsuit must include all of the other heirs entitled to a share of the estate. For instance, if a woman died leaving a husband and three children, if one of the children files a wrongful death action, she must list the decedent’s husband and other two children as claimants (“plaintiffs”) as well.

One problem with wrongful death cases involving more than one plaintiff is the division of the settlement or award. The jury (or judge, if the trial is by court) must compute the damages by considering the pecuniary loss suffered to all of the heirs and return a verdict for one lump sum. It is then up to the judge to divide the total amount of damages among the individual plaintiffs.

In making her determination as to how much to award each individual plaintiff, the judge will consider such things as the closeness of decedent and the heir, the nature of their relationship, how long they had known each other, the amount of support the decedent was providing for the heir, and other factors.

Evidence that the decedent was unhappy in his marriage and told others that he planned on getting a divorce from his wife does not defeat the wife’s claim for damages resulting from her husband’s death if no legal action had been taken by the deceased husband, such as obtaining a legal separation or filing for divorce, as couples frequently have disagreements or hard times that make them reassess whether it is worth staying in the marriage. Indeed, even the most happily of married couples occasionally have spats in which one threatens to get a divorce. While evidence of a statement that a married person did not get along with his spouse and was going to get a divorce does not bar the other spouse from receiving a share of the wrongful death settlement or award, it may reduce the surviving spouse’s share if it bears on the nature and closeness of their relationship.

If the wrongful death case involving multiple plaintiffs was settled out of court and the parties are unable to agree among themselves as to the division of the award, they will have to file an action in court and have a hearing before a judge, who will make the ultimate determination as to the settlement’s allocation among the heirs. Alternatively, the heirs may agree to have the issue of the division of the settlement proceeds settled out of course, such as by binding arbitration. At the hearing to determine the allocation of the wrongful death case proceeds, the parties may introduce evidence that they did not bring up in the trial.

Survival Actions

Suppose a person is critically injured in an accident and lingers for three months before dying. In that case, two separate lawsuits will have to be brought: one, a “survival action,” and two, an action for wrongful death. The survival action is brought by the personal representative of the decedent, and can recover such damages as: (1) medical expenses; (2) lost wages up to the time of death; (3) the pain and suffering he experienced from the time of the accident until his death; and damage to or destruction of any property.

 

 

Note that if the survivors recover medical expenses and lost wages up to the time of the decedent’s death in a wrongful death action, they cannot also be recovered in a separate survival action, as that would result in an impermissible double recovery.

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5. HOW LAWYERS DETERMINE THE VALUE OF YOUR CASE

Unfortunately, there is no Kelley Blue Book website for lawyers where they can punch in the vital information of your case and the extent of your injuries, and it will spit out the exact value. Each case is different. One case may be worth $250,000, but a similar case may be worth only $175,000. It is impossible to list all of the factors that go into deciding how much your case is worth. These factors can include:

  • Past and future medical expenses
  • Permanency of injury
  • Lost wages or disability
  • Loss of earning power
  • Pain and suffering
  • Loss of enjoyment of life
  • Chronic pain
  • Psychological trauma
  • Property damage
  • What part of the state were you injured in? (Some regions are known for their generous verdicts while others are known for their stinginess.)
  • Who is the injured party? (Cute kids generally bring in a lot higher award than the average adult.)
  • The makeup of the individual jury
  • The appearance, confidence, credentials, and believability of your witnesses as compared to those of the defendant
  • How you come across to the jury during your testimony
  • Last but not least, the appearance, presentation and competency of
    your attorney

value-of-caseOne case can result in a jury’s verdict of $2 million, while a substantially similar case tried in front of another jury in a different part of the state may bring in only $500,000—or even a defense verdict! In fact, two cases involving basically the same set of circumstances may result in drastically different awards, even if they were tried in the same courthouse but before different judges and juries.

Lawyers subscribe to services that tell them how much similar cases are settling for or how much juries are awarding in like cases. However, when it comes down to it, this all depends on the variables of: (1) how  sympathetic your client comes across; (2) who the defendant is and how evil she looks; and (3) how clear liability is. The clearer the liability, the more willing the jury is to put a higher amount on the injuries and damages you suffered.

 

 

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