Every accident claim is different and must be evaluated on the basis of the specific facts of that claim. Everyone has seen large jury awards in the headlines. These cases involve serious injuries associated with considerable pain and suffering. However, large settlements or jury awards make up an extremely small percentage of cases. Many times large jury awards are reduced either on appeal or in a negotiated settlement following the jury verdict.
If you are injured in an automobile accident caused by another, you are entitled to recover the following:
Special Damages: (Economic Damages)
General Damages: (Non-Economic Damages)
Income Loss
If you miss work due to the accident, you are entitled to recover your lost wages. You are also entitled to recover lost wages for time you miss due to treatment for your injuries. The right to be reimbursed for lost wages applies whether you have a full-time or part-time job, regular or occasional employment.
Medical Expenses
You are entitled to recover reasonable medical expenses incurred as a result of accident related injuries. These expenses may include prescriptions, doctor bills,hospital bills, ambulance bills, treatment by physical therapists, and other medical providers. (Medical expenses, wage loss, and other documented expenses are sometimes referred to as "economic damages.")
General Damages
General damages is a term used to describe compensation for pain, suffering, temporary and/or permanent disability and emotional damages. (Sometimes it is called "noneconomic damages.") This part of your damage claim is very subjective, and opinions about its value are even more subjective. As you may imagine, an insurance company will be quick to discount any "non-economic" damages you may have. We rely on many factors in estimating the value of a claim.
FACTORS CONSIDERED IN EVALUATING A CLAIM
There are numerous variables which can make a claim worth more or less money for purposes of settlement. Even though over 90% of all claims settle without a lawsuit being filed, or a case going to trial, part of evaluating a claim is based on projecting what the outcome of a jury trial would be, so we attempt to determine what the probable jury verdict would be if the case went to court. Although jury awards can vary significantly, there are special factors used to determine the likely jury award and the settlement value of your claim. All of these factors must be evaluated together to estimate the value of a case.
Not every factor applies in each case. Also, please note that the following variables are not listed in any particular order of importance.
State and County Where The Case Will Be Tried
Generally, lawsuits are filed in the state and county where the accident occurred or where the defendant resides. Where the case is tried frequently influences the size of the jury award.
You may have heard, for example, of the high jury awards in one part of the state or in another state. Jury awards in Oklahoma tend to be conservative, keeping with the general attitude of our population. Jury verdicts also vary by county. Jury awards tend to be higher in some counties than in others; again, this is related to the general attitude of the population in each county. A jury may award $10,000 in a one county but only $6,000 in another county, even though the facts of the case are basically the same.
Trial or "Alternative Dispute Resolution"
When a claim against the driver who caused the accident does not settle through out-of-court negotiation, a jury will usually decide the case in a trial. A six or twelve person jury (much like what you have seen on television or in the movies) then determines the value of your case.
In Alternative Dispute Resolution (ADR), a decision is made either by a single mediator or arbiter agreed upon by both sides, or by three such people. In that event, we select one person, the insurance company another, and the two mediators/arbiters agree on a third. These people are usually judges or lawyers. They will hear the evidence and decide your case. ADR is less expensive for the insurance company than a jury trial because an ADR process requires less time and less money in lawyer fees to defend the claim. The plaintiff usually has lower costs in ADR as well.
Generally, jury awards are higher than awards through ADR. Jurors tend to identify more with accident victims and be more emotional than Mediator or Arbiters who may have seen many similar cases. However, there is always a risk that a jury award can be disappointingly low. Other problems with jury trials is the length of time until a case is decided and the inconsistency of jury awards. After a lawsuit is filed, it can be over a year until the trial takes place. Although an ADR process generally means lower injury awards, the awards are usually more consistent and quicker to obtain.
Impressions of the Plaintiff and Defendant
Are you a likeable person? The impression you make on others is an important factor. A jury is more likely to be sympathetic to your claim if they believe you are presenting an accurate picture of the accident and not exaggerating your injuries.
A sincere and honest claimant elicits more sympathy than one who appears abrasive, difficult or greedy. Similarly, the impression made by the defendant is important. Does the defendant have a chip on his shoulder or is he very remorseful that the accident happened? If the accident happened because the defendant was drunk, a jury could award you more money in order to punish the negligent driver and make a point that drunk driving is not tolerated. Bad behavior usually means a larger verdict. Juries tend to award more money to plaintiffs they like and punish negative behavior by defendants.
Some lawyers refer to this quality as likeability. If you are likeable, you will make a better impression on the jury.
Objective vs. Subjective Injuries
Jury awards are higher for clients who have "objective" injuries compared to those clients who have "subjective" injuries. Objective injuries can be verified in a way other than the client's complaints. For example, a skull fracture can be verified by an x-ray. The jury can be shown the x-ray and see the fracture themselves. In these cases, the jury will generally believe that an injury exists.
Many injuries arising from auto accidents are subjective. These are the soft tissue injuries a client describes to the doctor, such as, "My neck is stiff and sore." It is difficult to objectively verify these injuries since muscle strains or sprains cannot be seen on x-ray. A jury or a mediator might feel that an injury is exaggerated when there are no objective findings to support the injured person's complaints. This is not to say that the plaintiff is not injured, as muscular injuries can be very troublesome and long lasting. However, the plaintiff always runs the risk that a jury may not believe that an injury exists or that it is less severe than the client describes.
Another factor may be whether your doctor prescribes medications. For example, the need for pain or anti-inflammatory medication indicates the injured victim is suffering from pain, inflammation or other symptoms. The type of medication and length of use may indicate seriousness of suffering.
Permanent Injuries / Disability
Awards for permanent injuries are greater than awards for injuries that diminish with time. Generally, the longer it takes to recover, the greater the award. We would expect a jury to award more in a spinal injury case where it takes three years for a client to recover than one that has a recovery period of six months.
Larger jury awards occur in cases where a doctor testifies the client has permanent injuries that will last for the rest of the client's life. It is not enough that you believe you will suffer the rest of your life. The court will require your permanent disability to be substantiated by a medical expert.
Type of Injury
Soft tissue: Soft tissue injuries are the most common injuries from auto accidents and include sprains and strains of the muscles and/or ligaments of the neck, back, shoulder, knees or other parts of the body. Insurance companies consider sprains and strains less serious because they are not usually expected to be permanent or life-impairing, regardless of how painful they may be. Also, sprains and strains are difficult to prove because they are not visible and cannot be objectively verified by x-ray. Because of this, insurance companies often vigorously defend against this type of claim.
Dislocations, separations, and ligament or cartilage tears: These injuries can cause more pain and have a longer recovery time than a strain or sprain. Even when the healing time and pain is the same as a sprain, these injuries are generally considered more serious.
Fractures: There are many types of fractures. If an x-ray shows even a minor fracture of a bone, including a chip or crack, the value of the claim increases. The particular bone that is fractured and the seriousness of the fracture influences the amount of the recovery. As an example, a person with a fractured rib may return to a desk job, whereas a person with a fractured arm who is employed as a construction worker may be unable to work for several months.
Spinal disc or vertebrae injury: If the accident results in either a herniated or bulging disc of the neck or back, a spinal nerve may be affected. X-rays, an MRI or other diagnostic imaging tests can reveal an abnormality either in a disc or in the space between vertebrae. Disc injuries may require long periods of conservative care or ultimately, surgery. Discomfort or lack of mobility may persist or recur as a person gets older. The degree and extent of injury, type of treatment, and time of recovery influences the value of spinal injuries.
Wounds and scars: Any tear or cut serious enough to require treatment, including stitches, increases the value of a claim. If the wound leaves a permanent scar, the value increases even more. The value can vary substantially between the facial scarring of a young female, and scarring that is not normally visible on an older male. Also considered is whether the scar can be surgically revised, and what impact the scar has on the person's life: facial scarring on a model would be valued higher due to the effect on his or her career.
Amputations, brain damage, and catastrophic injuries: Amputations include the removal of a fingertip or an entire limb. As with scarring, the effect on the particular person determines the value of the claim. A surgeon who loses a finger, or fingers, will have a claim of greater value than a similar injury to a retired individual. A brain injury can affect certain mental and bodily functions, or leave a person totally incapacitated. The effects of these injuries may last a long time and can even recur after recovery seems to be complete. Paralysis usually results from spinal cord damage. These injuries result in lifetime medical treatment and loss of earning capacity. These claims have a high value.
Wrongful death: Physical and emotional suffering before death, the accident victim's occupation, age, sex, and marital status influence the value of this type of claim. These claims have substantial value.
Psychological damage: Injuries can cause depression, stress, and tension among family members. The relationship between psychological damage and physical injuries is now becoming more accepted. However, in order to claim psychological damage, a psychologist or other therapist must be involved in the diagnosis and treatment of the condition.
Effects on Work and Lifestyle
Jury awards are higher when injuries have a permanent effect on a client's life than when there are only short term effects. If injuries cause a client to be unable to work (or need retraining for a new job) jury awards are higher than in cases where injuries affect a client's ability to engage in sports, hobbies, or recreational activities.
Diagnosis of Injuries
Your injuries must be diagnosed before treatment can begin. Most injuries are simple to diagnose and the charge for diagnostic services is a small percentage of the total medical bills. In some cases, numerous costly tests are performed before a diagnosis is made. In these cases, the insurance company may not view the total medical expenses as accurately reflecting the injured victim's pain and suffering.
What Kind of Treatment?
Insurance companies, and to a lesser extent, juries, tend to favor mainstream Western medical treatment over alternative medical practitioners. Alternative practitioners (including chiropractors, naturopaths, massage therapists, acupuncturists, acupressurists and herbalists) may be effective in treating injuries, but normally insurance companies do not consider this type of treatment legitimate. These expenses will probably be reimbursed by insurance companies, but you should be aware that pain and suffering compensation may be lower than if treatment was provided by a medical doctor, orthopedist, neurologist or prescribed physical therapist. Nonetheless, it is important for you to seek the treatment you feel comfortable with and believe will benefit your recovery the most.
How Often and For How Long Did Your Treatment Last?
It is just common sense that if you are injured, you will normally seek medical care. Juries usually feel that a client who is hurting from his injuries will seek treatment. Generally, treatment that is immediate and continues for a long period of time until the medical provider indicates you are either well or medically stable, better demonstrates your injury and will be valued at a higher amount. The insurance company views treatment of short duration to indicate less serious injuries.
A client who claims serious injuries with great effects on his home and work life, yet who has not been to the doctor will be viewed suspiciously by juries and insurance companies alike. If treatment is not sought at all after an accident, injuries will be regarded as minor or nonexistent. If treatment is delayed, or not sought for a significant period of time after an accident, the claim may be viewed as suspect.
On the other hand, a jury will have no sympathy for a client with minor injuries who went to the doctor daily in order to "drum up the claim." Insurance companies may view long term chiropractic treatment as excessive, believing chiropractors are more useful in managing short-term acute pain, rather then long-term care. In other words, the insurance company will not view long periods of chiropractic treatment as being as legitimate an indicator of the seriousness of an injury as the same amount of treatment with a medical doctor.
How Long Did it Take You to Recover?
When evaluating pain and suffering, juries and insurance companies will consider how long it took for the injuries to resolve or stabilize. The higher the frequency, severity and duration of pain, the greater the pain and suffering. The value of your claim depends on whether your injury required ongoing attention and the number of times you saw the doctor. This is one very important reason why you should keep your doctor informed about your progress. Any continuing pain, discomfort, muscle spasms, limited range of motion or immobility should be noted in your medical records.
How Much Did My Medical Care Cost?
Generally, the larger the amount of bills directly related to medical treatment, the higher the value of your claim, assuming that the treatment was reasonable and necessary. Jury verdict research indicates that jury awards are higher if the medical treatment is done by medical doctors, hospitals and physical therapists versus chiropractors, naturopaths, and acupuncturists (as noted above).
How Much Income Did I Lose?
The larger the amount of verifiable wage loss the higher your claim's value. Your wage loss must be verified by your employer or supported by your tax return. Remember, you must also have written authorization from your doctor for the time you are unable to work.
How Badly Was My Vehicle Damaged?
Current research clearly demonstrates that it is certainly possible to sustain a significant injury with relatively minor damage to your vehicle. In the view of a typical jury or insurance company, your claim has more value if there is significant damage to the cars involved. Since we live in a society which is very visually oriented, if a juror or claims adjuster can see the damage to your vehicle, it increases the likelihood that they will conclude an injury has occurred.
The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law. See Terms of Use. |