- November 12, 2020
- Tucker Law
- Car Accident Lawsuits
Can you sue for pain and suffering after a car accident, as well as for the economic costs that arise from the incident? Fortunately, the answer to this question is usually “yes.” The financial expenses car accidents cause account for only one portion of the harm you suffer as a victim; there must be some allowance for the less concrete physical and emotional pain you endure as well.
Damages provide financial compensation for the harm caused by a car accident, and these damages primarily come in two forms; economic and noneconomic. Economic damages account for the calculable costs that result from accidents, such as the value of a totaled car, medical bills, lost wages, and lost future earnings. Noneconomic damages cover the losses that aren’t so easy to accurately price.
Pain and Suffering from a Car Accident Covers Many Things
Noneconomic damages are sometimes referred to as “pain and suffering damages,” as they typically compensate plaintiffs for various types of distress they endure because of the negligence of the plaintiff in their case.
These can include:
- Physical pain
- Fear and depression arising from the possibility that you might not fully recover from your injuries
- Concerns about how your condition may prevent you from living as you did before your accident
- Worries about the financial impact of your accident
- Embarrassment or loss of self-confidence related to scarring or disfigurement you suffered in your accident
- Post-traumatic stress disorder (PTSD) resulting from your accident.
Evidence of Pain and Suffering
Noneconomic harm is extremely real (as you’ll know if you’ve undergone it), and should be no less compensable than medical bills and lost wages. However, presenting concrete evidence of this kind of loss can be much more difficult.
Of course, “difficult” is not the same thing as “impossible.” At Tucker Lawyers, there are several forms of evidence we use to try to secure noneconomic damages for our clients, including:
- Photos: Whether it’s images from the accident scene, the direct aftermath of the crash, or the events that take place during the days and weeks following your accident, photographic evidence can create an idea of the personal suffering the incident has caused for you.
- Personal journals or vlogs: We often tell our clients to document their recovery processes in writing or on video. As well as being therapeutic, this process can provide you with important evidence during a lawsuit.
- Testimony from family and friends: Often, those close to you are in a better position to explain how your life has changed than you are.
- Expert testimony from mental health professionals: Our car accident lawyers often enlist the help of mental health experts to evaluate the mental state of clients in an attempt to create a clearer picture of the extent of the suffering they have endured because of their accidents.
How Much Do You Get for Pain and Suffering? At Trial, That Depends on the Evidence.
Judges typically don’t give juries detailed directions for coming up with pain and suffering damages. Jury members must generally use their own common sense and life experience when deciding how to compensate you.
Jury members will consider:
- Your perceived credibility on the witness stand
- The statements of physicians and other expert witnesses
- Whether your diagnosis and injuries are consistent with your claim
- Whether the documentary evidence is consistent with your testimony.
While juries have significant discretion when it comes to awards of noneconomic damages, there are limits. According to a 2019 decision by the New York Appellate Division, Second Department, a judge or an appeals court won’t change the damages found by a jury in a given case “unless the award deviates materially from what would be reasonable compensation.”
This “reasonable compensation” standard is judged by reference to previous similar cases. Though awards in similar cases do not set out binding limitations, New York juries do tend to use them as guidelines. Juries cannot simply pluck a number out of the sky when awarding pain and suffering damages; their decision must be reasonable and evidence-based.
How Much Do You Get for Pain and Suffering in a Settlement?
Though the section above contains important information for you as a potential plaintiff, it’s also vital to note that the majority of personal injury cases never make it in front of a jury. Most of the time, we agree to settlements on behalf of our clients privately.
In these cases, injured parties agree to withdraw any legal claims in exchange for an amount of money from the defendant or their insurer. When your case settles, it ends there. You do not go to court.
Calculation Methods for Pain and Suffering Compensation in Settlements
Insurers use formulas to come up with settlement offers, and the two sides then usually negotiate back and forth until they reach terms they can both agree on. Often, insurance companies use the multiplier method to come up with a possible settlement. Under this method:
- All of your economic damages, including past and future medical bills and lost wages, are added together.
- The resulting sum is multiplied by a factor of between 1.5 and 5, depending on the circumstances of the case; the more severe the injuries and the greater the resulting pain and suffering, the higher the multiplier.
- The multiplier may also go up or down depending on the strength or weakness of your case.
Another calculation framework insurers use is the “per diem” (per day) method. This system involves the following steps:
- Daily rate determination: Insurance adjusters calculate a rate of compensation that supposedly reflects the impact the injury has on your life on a daily basis. This might be based on your daily earnings, under the logic that a day of pain and suffering is worth a day’s pay. However, there’s no standard method of setting the rate, and different insurers have different approaches.
- Multiplication by the number of days: The daily rate is multiplied by the number of days you’re likely to experience pain and suffering, including days that have already passed.
- Negotiation: The per diem method is inherently subjective, and the daily rate can be a point of contention. Insurers and claimants often have differing views on what constitutes a fair daily rate for pain and suffering, and predicting the duration of pain and suffering requires subjective judgment as well. So, like the multiplier method, this generally provides only a jumping-off point for negotiations, rather than a final figure.
Does No-Fault Insurance Provide Compensation for Pain and Suffering in New York?
New York is a no-fault state. This means that, when you get into a car accident, you can file a claim on your own insurance policy regardless of who was to blame for the crash. This has the obvious advantage of allowing you to receive benefits without first having to prove that you weren’t the at-fault party in your accident.
However, the no-fault system isn’t perfect. While you can recover compensation in respect of medical treatment, rehabilitation costs, and lost earnings up to a certain limit, you will not be entitled to recover noneconomic damages like pain and suffering. In order to pursue noneconomic damages, you’ll need to file a personal injury lawsuit.
When Can You File a Lawsuit?
The option to file a lawsuit in relation to a car, truck, or motorcycle accident is not always available. New York law requires that, in order to file a personal injury lawsuit in this situation, you must have suffered a “serious injury.” This is defined by New York Insurance Law § 5102(d) as any injury that results in:
- Death
- Dismemberment
- Significant disfigurement
- A bone fracture
- The loss of a fetus
- Permanent loss of use of a body organ, member, function, or system
- Permanent consequential limitation of use of a body organ or member
- Significant limitation of use of a body function or system
- A non-permanent injury or impairment that prevents you from engaging in your usual daily activities for at least 90 of the 180 days immediately following the occurrence of the injury or impairment.
Tucker Lawyers Can Help If You Have Pain and Suffering from a Car Accident
If you’re dealing with severe pain and suffering because of a car accident injury, our skilled attorneys will work to get you the compensation you need. The at Tucker Lawyers are here to help. Contact us today at (516) 399-2364 to schedule a free case review.
Managing Attorney John. J. Tucker, Esq.
John has personally handled thousands of clients who were victims of another’s negligence and fights relentlessly for their rights. John enjoys bringing closure to a client’s matter so that the injured party can move forward with their life. His background enables him to evaluate complex liability related claims and bring resolution to claims in a record time frame. [ Attorney Bio ]