Car accident settlements are not as plain and easy as many presume at first. While it is easy to prove all the economic damages you sustained because of ample proof in the form of medical bills, receipts for repair costs, records of extra expenses, and so on, the same is not true for the non-economic losses.
How can one put a price on pain and suffering?
Is it justifiable to assign someone a fixed sum irrespective of the agony they were thrown in because of someone’s negligence? Of course not. Seeking compensation for all financial and otherwise losses is your legal right, and you don’t have to inch back on anything – not even the pain you felt.
The law respects every individual’s right to live comfortably, so your pain will not go unnoticed before the insurance adjuster, or if need be, in a court of law.
This article will explore how to settle for fair compensation for your pain and suffering.
In legal terms, pain and suffering for personal injury claims is the combination of all physical and mental stress that one had to go through due to an accident or event. The losses incurred upon by a personal injury victim may be wider than economic damages that can be calculated by adding up all the bills and receipts.
The problem with pain is that there are no receipts.
In most cases, proving the degree of your pain is also not as simple as one may presume. Yes, we know that you are in anguish, but the insurers or a jury may be skeptical of your claims and will need some convincing to see things our way.
However, some forms of pain and suffering are quite obvious, and questioning them would not be necessary at all (such as the loss of consortium or severe injuries).
Overall, these non-economic damages can be summed up as follows:
It is not simple to define pain and suffering. Any number of mental and physical impacts of being involved in a personal injury case can be considered under this definition. Since these feelings are incalculable, we can’t put a standard price on them.
However, people can and do receive appropriate compensation for such losses.
Consider this (hypothetical) example:
A woman was driving home and stopped at the traffic signal. Another car, driven by an intoxicated individual, came from the rear-end and smashed hard against hers, resulting in a gruesome accident. She was rushed to the hospital where she passed away after suffering from agonizing injuries.
The sheer negligence on part of the drunk driver resulted in her demise (drunk driving often results in fatal accidents), and her family, seeing clearly who was responsible, proceeded with a lawsuit.
When the matter was brought to the court, the jury was successfully convinced by the family’s attorney that the woman’s death was a direct consequence of the other party’s negligence. As a result, she was posthumous given a sum (calculations will be discussed in later sections) for her pain and suffering leading to wrongful death (the agony of sustaining those injuries).
As for her children, each was given compensation for the loss of their mother, while her husband was given also given a sum for losing his wife (loss of consortium).
Thus, true compensation does exist for the loss of consortium & pain and suffering even though they are not easily calculable.
Not everyone is eligible for claiming pain and suffering compensations, even if they did suffer physical and mental pain due to an incident. These exceptions include:
However, in most cases, seeking compensation for your physical and mental anguish caused by an automobile accident is not only a possibility but there’s a fair chance of securing it.
Technically, there is no way of calculating someone’s pain. There is no way of knowing how much suffering one had to go through because of an incident because the degree of pain is only known to the sufferer.
However, some approaches have been created to help aid the decision-making process. While none of them can tell us how much anguish a person is experiencing, they do let us create a monetary equivalence of someone's suffering:
The term ‘per diem’ literally translates (from Latin) into ‘per day.’ This method involves setting up a monetary value for each day spent in suffering, usually equivalent to the person’s daily wage or income that the person lost due to the pain and agony they had to endure.
Though rarely used, the method does offer a price tag on someone’s suffering even if it is not reflective in the intensity of the pain but rather its duration.
Let’s consider the following example:
A man gets involved in an automobile accident which is clearly the other party’s fault. He suffers from a serious blow to the head, an arm fracture, and other injuries.
The insurer of the at-fault party does not resist paying up and accepts complete responsibility for the occurrence. The victim spends 42 days in his home, unable to return to his job because of a concussion with lingering effects, the fracture, and physical agony.
He is unable to relax due to a debilitating fuzziness of the mind. Focusing on something, even watching the TV or stepping out on a sunny day is out of the question for him. After the 42 days of what can be loosely defined as ‘house arrest,’ the victim is feeling better and the symptoms fading away.
He approaches the responsible party’s insurer and forwards his demand of an extra $5,040 for all the pain and suffering he had to go through for 42 days. This value, he calculated by multiplying the number of days with his daily wage - $120.
Thus the $120 value is the per diem rate and this calculation used the per diem method.
The second method is the more commonly used one and is especially frequented in insurance claim settlements. This method does not assign a specific value to the pain but instead assigns a multiple to be used for the total economic loss that a victim sustained.
In simpler words, the complete financial loss is multiplied by a number and the answer will be the combination of all economic and non-economic damages added up. The multiple ranges between one and five and is selected based on the intensity of suffering – which is reflected in the intensity of an accident.
The biggest advantage of this method is that it factors in the level of pain while making the calculations even if only vaguely.
To clarify, the sum total of economic losses include all the medical expenses, loss of income, repair of property damage, and extra (or in insurance terms: “special”) expenses. You will need concrete proof to back up your claim of having made the said expenses such as receipts and bills.
The only trick here is to choose the multiple.
As noted earlier, there is no way of knowing precisely how much pain a person is enduring. This means that even though the compensation is ‘sort-of’ fair, it cannot be precise.
But it is better to have something than nothing at all.
Here comes the part where we analyze the actual problem with pain and suffering compensation demand: other people can’t see it. If you just walk in and ask the insurer to pay you extra for all the pain you had to bear, you shouldn’t be surprised at their reaction.
The insurance company will not roll over for you, they must secure their own interests and those of their client before anything else. Unless the situation demands it, they won’t pay you any more than they have to. To get them to open up for the extra payment, you will need to provide proof.
You must back up all of your claims with concrete and irrefutable evidence that shows that you've been in great pain and that you deserve a substantial sum in compensation for it. For instance, if you present them a doctor's report which shows how you've suffered from fractures, they will have to believe your narrative.
In most cases, the pain and suffering reimbursement will lie somewhere between one and three times as much as the total economic losses. This is because most accidents don't call for more than that. However, in extreme cases, the sum maybe five times as much!
The settlement is based on the circumstances under which you suffered a said injury, if the accident was severe, logic dictates that the pain and anguish must’ve been a nightmare too. Another factor will be your ability to convince the insurance adjuster that the injury is indeed as severe as you claim.
This part is a bit tricky and is best left to the car accident lawyers because they can do it much better.
Usually, the insurance adjuster will add a sum on top of all your economic losses as a compensation for your anguish. You can either accept the offer as-is or persuade them to be more flexible with the pain compensation.
They may be willing to lend you an ear, however, if that’s not the case, you can always take matters to a court of law.
This happens more often than you'd think. Most of the time, the insurance company will outright refuse to offer a fair settlement. There are several ways they can do so, so it serves to be well aware of those and plan your approach accordingly:
The best way to approach this problem is to go in prepared with adequate evidence and with your attorney. Your lawyer will prepare you for the conversation beforehand, this way, you’ll know precisely what to say and how to say it.
Remember, your words can and will be used against you in a court of law if need be.
If you feel confused, let your lawyer take the lead.
The compensation for pain and suffering is reflected directly in the intensity of the anguish. Intense injuries will leave a major impact on your physical and mental state thus demanding a higher compensation.
In some cases, the anguish needs not be described or justified, it is quite obvious.
These cases include:
Even though such circumstances are horrifying, to say the least, there are several loopholes that the legal representatives of the other side may use to avoid paying a sum that is due for such anguish. The best way to counter such malicious attempts at using regulatory laws for unfair purposes is to have a personal injury lawyer at the forefront of your efforts.
Before you go on explaining your situation to the insurance adjuster or before a court of law, contemplate a bit on it yourself. You need to explain the pain to yourself before anyone else. After all, it was you who suffered the trauma.
Pain is different for everyone, each individual responds differently to the tragedies of life. First of all, focus on how the pain that you suffered affected your peace of mind and your lifestyle. How much did your life change as a result, for how long, and how much of that change is reversible?
Pain can be broken down into two types:
If you feel that you’ll be okay after the initial treatment and that the pain will subside within a few days, you need not worry about the future phase. However, a better way to approach this problem is to ask for a professional’s opinion. A doctor will know better about the lasting impacts of an injury.
If your suffering poses some lasting problems that will haunt you in the future then you have a reasonable right to pursue a bigger sum for your anguish. The only requirement here is to convince the insurance adjuster that the sum you’re demanding, no matter how big, is completely justified.
If you can convince the insurer, then there's no problem but otherwise, you'll either have to file a lawsuit or accept a smaller compensation.
You can throw in any number of arguments and contemplate dozens of strategies, but without strong evidence, it’s all a moot point. To make your claims convincing and to ascertain that they do get you the amount you wish to receive, you need to explore all options and leave no stone unturned.
Any evidence that you can present before the insurer or a jury is an asset.
Here are some examples:
These documents are very valuable to your case. You can prove that the accident was the only reason for your suffering by showing that you did not have the medical problems, that caused you distress, before the accident.
These records will also help you show how these injuries and damages are affecting your lifestyle. If you can’t drive for some time, mention that (the doctor would’ve written this on the report – if not, ask them for a note), if you’re having trouble sleeping, mention that too, and so on.
The point is to show that you have indeed suffered from a serious trauma and that your descriptions of the suffering and anguish you’re facing are not inflated. Throwing in a couple of pictures of your injuries will also help tip the scales in your favor.
This one is pretty simple but just as effective. In the previous case, you had your doctor mention all of your problems, this time, it will be all the people who know you. The accident must’ve caused you great discomfort in daily life and your routine must’ve suffered as a result.
But how will the insurer see that?
Through witness statements, you can prove that your life was affected adversely due to the accident and that things could’ve been much better otherwise. Ask your family and friends to write official statements on how your life has changed and highlight the challenges you face because of those changes.
If someone is assisting you in child care, ask them to throw in a couple of sentences about how your condition is keeping you from taking care of your beloved children.
Keep track of all the changes and losses in your life and how they affect you emotionally. Your notes, or rather a diary, will become a first-hand narrative about how you feel when you ask others for help in doing stuff that you could’ve done yourself.
You must feel angry at not being able to work, especially if you were close to getting a promotion or had a nice reputation at the workplace.
Mention how the pain is ruining every joy of your life.
The key to success is being prepared and proceeding with proper legal counsel.
We understand that going through a car accident or any other personal injury scenario for that matter is a traumatic experience. The fact that you have to ‘prove’ your suffering even though you’re clearly in pain is not something that we, as parts of this legal circle, are proud of.
However, the law exists to ascertain claims and not to rush for justice without proper verification.
Though the process is a bit complex and at times confusing, we will see to it that your pain and suffering claim does not go unheard. Calhoun, Meredith, and Sims, PLLC will strive as hard as needed to build your case and help you claim our rightful compensation.
Feel free to call us, consultation is free!