Personal Injury Claim FAQs
Banafshe Law Firm PC March 25, 2020
If you’ve been involved in an accident, you likely have a long list of questions regarding the best way to proceed. Personal injury claims can be complex and require the counsel and guidance of an experienced personal injury lawyer. From understanding your rights under your insurance policy, to determining whether you’re eligible to recover damages for your losses, read on to get some answers to the most common questions surrounding personal injury claims.
What are Some Common Types of Personal Injury Claims?
Any type of accident or injury can become a personal injury claim if the accident or injury occurred due to someone else’s negligence. If you’ve been involved in a car, truck, or motorcycle accident; a slip-and-fall accident, a workplace accident, or experienced an injury due to a product, care provider, or employer, then it’s likely you have a personal injury claim.
Who Can Qualify to File a Personal Injury Claim?
If your accident or injury was caused due to someone else’s negligence or lack of care, then you will likely be able to file a personal injury claim. In some instances, spouses of an injured party may also be able to file a personal injury claim.
How Do I Prove My Case?
A Personal Injury attorney can guide you through the process of obtaining evidence that a personal injury claim would be appropriate. In order to prove your case, you will need documentation of the extent of your injuries from a doctor; and a police report that supports the finding of evidence at the site of the accident, including photographs and witness statements. In the absence of a police report, you may still be able to recover for personal injury claims if you documented the evidence at the scene.
How Quickly After the Accident Should I File My Case?
Each state has a statute of limitations regarding a plaintiff’s ability to file a personal injury claim. In California, plaintiffs must file their claims within two years from the date of the accident.
What is My Personal Injury Claim Worth?
Determining the amount to claim isn’t exactly an exact science, which is why it’s important to work with a personal injury lawyer to determine what’s appropriate and likely to be successful. When determining how much to claim, your attorney will consider how much of an impact the injury can have on your life, the costs of your medical care, lost wages, property damage, and pain and suffering claims.
How Are These Losses Pursued and Addressed?
Generally speaking, any injuries or losses suffered at the fault of someone else’s negligence will be paid by the negligent party’s insurance company. In order to do so, you will need to prove the party is at fault. In addition, once that fault is proven then a plaintiff is able to seek damages for both economic and non-economic losses. Economic losses are straightforward expenses that a plaintiff has incurred due to the accident. These might include medical expenses, lost wages, and property damage costs. Non economic losses, however, are a little more difficult to prove. These will hinge on whether you can prove that you’ve experienced extensive pain and suffering as a result of the accident.
What Are Pain and Suffering Damages?
Pain and Suffering damages are designed to compensate you for a loss of enjoyment. Rather than simply addressing the actual costs of your medical expenses and lost wages, pain and suffering damages consider the long term impact the injury will have on your life. In California, pain and suffering claims are determined by analyzing the following:
- Current and future physical pain
- Current and future mental suffering
- Loss of enjoyment of life
- Physical impairment
- Emotional distress
How Do I Calculate the Value of Pain and Suffering in a Personal Injury Case?
Pain and suffering claims aren’t as easy to calculate because these losses aren’t perceived as tangible. Determining how much to award for the loss of enjoyment of life, for example, isn’t exactly an easy judgement to make. California Civil Jury Instruction 3905A indicates that a set standard does not exist for the calculation of pain and suffering damages in the state. Instead, jurors must use their common sense to determine what is reasonable under the circumstances.
As such, working with a personal injury lawyer will ensure you are effective in presenting clear, readily identifiable, and compelling evidence that pain and suffering damages should be awarded.
In order to recover damages for pain and suffering due to another’s negligence, you will need to prove that the defendant is at fault, and that their negligence caused a great deal of discomfort, physically, financially, and emotionally.
When Will an Insurance Company Pay Compensation for Pain and Suffering?
When it can be clearly proven that another party’s negligence caused an accident, then an insurance company is likely to pay at least some of the pain and suffering damages incurred by the plaintiff. However, insurance companies rarely offer the full amount being claimed and are notorious for making low settlement offers. Working with an attorney can ensure that your claims are compensated fairly and for the amount requested.
When determining how much the insurance company is willing to pay, their adjuster will likely consider:
- The severity of the injuries
- The type of pain and discomfort that people normally suffer from your type of injuries, and whether your pain and suffering is comparable
- How these injuries have impacted your life, your work, and your relationships
- The length of time required to heal your injuries
- Whether you will require long-term care
How Are Pain and Suffering Damages Calculated?
A personal injury lawyer can help you calculate your pain and suffering damages in order to present a formidable figure to the insurance company and begin negotiating a reasonable settlement amount. Your attorney will likely employ one of the following methods for determining the cost of your pain and suffering damages.
The multiplier method
Lawyers commonly used the multiplier method to determine pain and suffering damages. The method requires consideration of the client’s past and future medical bills multiplied by a predetermined number, plus the total of your economic damages. Usually, an attorney will multiply the cost of your medical bills by anywhere between 1.5 and 5. The attorney will choose the multiplier based on the severity of your injuries – the more severe, the greater the number they will use. Oftentimes, your attorney will use a higher multiplier to offset the insurance company’s use of a lower figure.
The per diem method
Your attorney may choose to proceed with a per diem method, which involves using a daily dollar amount from the day of the accident through the time that the client fully recovers from their injuries. Under this method, the amount is usually quite reasonable, somewhere around $100 per day. That amount is then multiplied by the number of days between the date of your injury and the date that the client made a full recovery and re-obtained their health.
The job description method
While this method is not very common, it is nonetheless effective when determining pain and suffering costs. Under the job description method, the extent of your pain and suffering would be calculated as though you were an employee completing a task. For example, if you were confined to a wheelchair for six months, your attorney would calculate how much the average person would expect to lose in lost income during that time.
While these methods are all acceptable approaches for calculating pain and suffering damages, the court and jury must agree on the approach before an attorney can proceed to recover under that claim. In major personal injury claims, attorneys will often call on focus groups to determine whether their calculation method is appropriate or reasonable to a test audience. Your attorney should work with you – or at least keep you informed – of the method they would like to use to calculate a reasonable amount of damages.
Can the Insurance Company Refuse to Pay Damages?
Generally speaking, your total damages inclusive of pain and suffering will be limited to the negligent party’s insurance policy limits. For example, if the negligent party’s insurance policy only covers bodily injury up to $50,000, you will likely only be able to recover under that amount. Unfortunately, insurance companies require a complete release of their insured liability in exchange for payment of the policy limit. Meaning that, even if your damages fall short of what you’re entitled to, you won’t be able to pursue the claim directly with the party at fault.
However, there are exceptions to the rule. Sometimes, a personal contribution from the negligent party will be sought, or an additional coverage policy might exist to cover the plaintiff’s losses. One common example would be the existence of an umbrella policy that covers the insured up to an additional $1 million. California law might also require the insurance company to pay in excess of their coverage limit if a reasonable policy limit demand was not accepted by the insurance carrier.
While it may be discouraging to learn that there is a limit you can recover under the negligent party’s insurance policy, you should nonetheless consult a personal injury lawyer to determine whether any exceptions might apply to your particular case.
How Does the Insurance Company Calculate Pain and Suffering Damages?
The insurance company may not proceed with any of the above referenced methods to settle your personal injury claim. Instead, it’s common for insurance companies to use algorithms to arrive to a reasonable amount for your claims. Taking multiple factors into account, including any comparable figures that have been doled out to other injured parties, the company will notify your lawyer as to how much they are willing to pay toward your claim. At that point, the negotiation begins.
How Will My Attorney Present My Case at Trial?
In order to recover fair compensation for your injuries, it is vital for your attorney to present strong evidence of your economic and non-economic losses. That means it is highly important for you to be frank – both with your attorney and in a courtroom – of the extent of your injuries and the tremendous impact it has had on your life. You should not hold back about the things you’re experiencing, or how they have affected you physically, emotionally, and in your relationships or workplace. Your attorney will likely approach your issues with dignity, kindness and respect, understanding that it is difficult to go on as normal after a serious accident. It’s their duty to fight for you, so consider them an ally.
Before your initial meeting, take some time to think about all of the ways that your injury has affected you, and write them down. Don’t leave something out just because it may seem insignificant to you – for example, if you enjoy playing a sport or an instrument and can no longer play like you used to, write it down and let your attorney know.
When presenting the case at trial, your lawyer will likely instruct the jury to consider making an award of damages to compensate you for your losses. They will use testimony from your initial meeting to explain why you are entitled to a key set of damages.
How Will My Attorney Justify the Amount of Damages?
Proving that you are entitled to both economic and non-economic damages is vital if you wish to recover for your losses. In order to do so, your attorney will present a series of documents supporting his case, including:
- Your medical records
- Witness testimony establishing the impact of your injuries
- Expert testimony verifying the severity of your injuries and resulting pain
- Testimony from friends and family describing how the accident may have changed your life
Contact an Experienced Personal Injury Lawyer
If you have been injured in an accident caused by someone else’s negligence,do not hesitate to contact an attorney to explore your options to recover for your losses. An attorney will review the facts of your case and analyze all of the factors that may impact your success in court.