This is the second of a three-part series on how to navigate personal injury claims. While car accidents are the most common injury-causing incidents, this information also applies to slip and falls, toxic exposures, and product defects. This article provides guidance and tips on preparing your damage claims and gathering evidence to maximize your recovery if you are ever injured. However, this is not legal advice, and you should always contact a lawyer to discuss your specific case. Consultations are free.
Once a claim is filed with the wrongdoer’s insurer, they will request updates on your condition, treatment, and damages. They will also want copies of your medical records, medical bills, and payroll records. If you have not yet hired an attorney, this is a crucial time to obtain representation. They will have you sign a release so they can gather your medical records and provide the relevant ones to the insurer.
When your injuries stabilize, the insurer will be ready to start negotiating a settlement. Before you are in a position to negotiate, you must ensure that you have explored all aspects of your claim and gathered information and documents in support of each category of damages. The most common damage categories are:
· Medical Costs (Past and Future)
· Wage Loss (Past and Future)
· Property Damage
· Pain and Suffering
The most important damages in personal injury actions are medical costs. This includes charges from the hospital, ambulance, doctor visits, surgeries, prescriptions, and medical supplies. You can recover for the entire amount of these costs that was actually paid by you or your insurer – not just the co-pays. However, you should be aware that your insurer has a right to reimbursement for these payments from any settlement or judgment. It is also important to note that you can only recover the amounts actually paid to the medical provider, which are often much less than the amount originally billed.
Insurers and juries often value a personal injury case based on the amount of medical bills incurred. So, cases with large medical bills often result in larger settlements and verdicts. This is yet another reason why you should never put off treatment for your injuries. Juries can award damages for both past and future medical costs, so it is important to talk with your doctors about their plans for future treatment and the expected cost over your lifetime.
People who are injured often need to take off time from work to recover. Talk with your doctor about time off for recovery and request a note so you can provide it to your employer. Even if your employer offers paid sick days, you can still make a claim for this time. It is very important that your employer properly classify you as “out-sick” in order for you to recover, so make sure to let the human resources department know about the injury and the expected recovery time. Keep track of the days you missed from work, including half-days when you had doctor visits.
You may also be able to recover for future wage loss if you will not be capable of performing your job in the future as a result of your injuries. For example, a back injury that results in a heavy lifting restriction may prevent you from working as a construction worker. In this case, future wage loss is determined by the difference between the pre-incident wage and the post-incident wage in a more suitable job, multiplied by your expected work life.
Property damage includes the amount of damage that your vehicle sustained in the crash along with any damaged items of personal property such as mobile phones, clothing, etc. It is important that you take pictures or videos of any damage as soon as possible after the incident to support your claims. While the insurance company often handles the repairs to your car, it is important that you keep documentation showing the repair costs.
For personal property, you should explore repairs before replacing the item. If a repair is not available or too costly, you should purchase a replacement item of a similar cost/quality as the damaged item. If you decide to upgrade, you should gather documentation of the cost of a comparable item, and agree to limit your claim to this amount. While most insurers will only offer compensation for the depreciated value of your personal property, you should push back against this when negotiating a settlement and request the full replacement amount.
Pain and Suffering
There is no formula or objective way to determine pain and suffering damages. Instead, juries are asked to calculate this figure based upon the evidence they hear at trial. While the amount of pain is highly relevant, jurors can also consider emotional distress, disfigurement due to scars, loss of use of a body part, inconvenience, and grief when calculating these damages. While these damage awards are dependent upon the evidence presented at trial, studies have shown that juries often use the medical cost and wage loss numbers as a basis for pain and suffering. So, the larger the medical costs and wage loss, the larger the pain and suffering award.
Punitive damages are not available in most personal injury claims. These damages are only available where the person responsible for the incident acted with malice, oppression, or fraud. While unusual, punitive damages may be available where there is evidence of driving under the influence or road-rage. Even then, the amount of punitive damages depends on the wealth of the responsible party, and they cannot be paid by an insurance company
In many incidents, there are multiple parties at fault. Sometimes, the injured party may also be partially responsible. When this is the case, responsibility is apportioned – or split – between the parties involved. When two different wrongdoers are responsible for the incident, they will share the cost of your damages and will work out the split amongst themselves. If you are partially at fault, your damages will be reduced by that percentage. For example, if you incurred $1,000 in medical bills but you are 25% at fault, your maximum recovery for these bills would be $750.
If someone alleges that you are partially at fault, it is up to you to defend yourself against this allegation with evidence. This is where witness statements and recorded party admissions come into play. Provide this evidence to your attorney and work with them to combat the allegations to maximize your recovery.
This is not legal advice. You should always contact a lawyer to discuss your specific case. Consultations are free.