Rear-End Car Accidents -Types Of Damages You Can Claim
Q. About six months ago I was in a car accident involving a drunk driver. We were hit from the rear and I had to have surgery on my lower back. I work as a server in a local restaurant business. While I am back to work now, I am uncertain if I could continue standing on my feet and repetitive lifting which is what my job requires. I do not have disability insurance and I am really concerned about my future. What type of personal injury damages will I be entitled to should I retain a lawyer and proceed with a lawsuit?
A. There are a number of different types of damages available to you. The real question is whether the other driver carried sufficient insurance liability limits and if not, whether you have sufficient levels of uninsured/underinsured motorist Insurance to cover your damages and claims.
Generally, in these types of accidents, there are three categories of compensable damages you may be entitled to recover in your situation: special, also called economic damages, general damages, and punitive damages.
What Are Special (Economic) Damages?
Special damages are also known as economic damages. They include but are not limited to compensation for all reasonably necessary past and future medical bills, related medical care, and treatment, including prescription drugs, therapy, home nursing, and counseling. Also included, should you be the owner of the vehicle, you would be entitled to compensation for damages to repair or replace your vehicle, also known as vehicular property damage.
Under a property damage claim, and assuming your vehicle was totaled, you would be legally entitled to recover an amount equaling the fair market value of your vehicle just prior to the accident. If your car was not totaled in the accident, then you would be able to claim the full cost of repair. Any content in the vehicle that was damaged or destroyed resulting from the accident would also be recoverable.
You may have a very significant past and future income claim. You are clearly entitled to recover all prior lost pay (including tips) resulting from having to be out of work per your doctor’s recommendations while recovering from your accident.
In addition, because you suffered a serious injury you may have physical limitations now that prevents you from performing your type of regular work in the future. In cases such as these, lawyers will retain a vocational rehabilitation expert to make that determination. If it turns out that you are unable to continue your current occupation, you would be entitled to compensation for vocational retraining in order to enter a new vocation.
What Are General Damages?
General damages provide compensation for all past and future pain and emotional suffering you had and will experience as a legal result of your accident. This is the most difficult part of your claim to prove and is always a point of major contention at the time of settlement. Insurance industry adjusters will attempt to claim you are entitled to an amount equaling no more than two-to-three times your medical specials. You do not need to accept this as a fixed formula – this is the insurance adjuster’s way of trying to limit the amount of your recovery. Remember insurance adjusters are hired and trained to limit your financial recovery and they will do everything they can to do just that.
I have seen general damages awarded for as much as thirty-times the amount of medical bills, especially in cases of aggravated liability, where there is a potential for a very high verdict. Most insurance companies will consider, though they will not readily admit it, that being injured by a drunk driving is a case of aggravated liability. This leads us to punitive damages, the third and final aspect of your potential damage claim.
What Are Punitive Damages?
This is a very tricky area of the law. Punitive damages are intended to punish and make an example of the defendant for having intentionally placed himself and others in a dangerous and reckless manner. Most courts require you to prove the defendant acted with malice. The courts also require that punitive damage awards bare some reasonable relationship to the severity of the injuries you have suffered and will likely suffer in the future as a result of the defendant’s conduct.
Since you were hit by a drunk driver, it is possible your lawyer may wish to make the case that the defendant, by voluntarily consuming excessive amounts of alcohol and/or drugs, acted with reckless disregard to the rights and safety of other motorists and therefore demonstrated the intentional state of malice – a necessary element to the proving punitive damages.
Are Punitive Damages Hard To Prove?
Yes, very. You need to know that punitive damages are very difficult to prove and courts are notorious for reducing them post-verdict or not allowing the plaintiff to plead and/or prove them at the time of trial. Also, it is possible that the defendant’s insurance company will choose to represent the defendant under a reservation of rights. Since insurance companies do not cover intentional and/or malicious acts committed by their insured, your lawyer, by alleging and proving such conduct, may be risking invalidating the defendant’s coverage. Unless the defendant is wealthy, without defendant’s insurance coverage, you may not be able to recover anything. So be very careful here and let your lawyer guide you through this risky area.
Will I Recover All My Damages?
That depends. Now that you know some of the basics of damages, you now need to consider the reality of actually being able to recover them. That will depend on the number of liability limits of the defendant as well as your own coverage.
The sad truth is that it is entirely possible that your damages may exceed the available insurance limits of the defendant’s insurance. If so, you will need to depend on your own uninsured-underinsured motorist coverage. Hopefully, your own UMI limits will be sufficient. In cases like these, it is always a good idea to ask your lawyer to perform an asset search on the defendant to determine whether it is financially feasible to recover against the defendant personally.