If you win a personal injury or wrongful death lawsuit arising out of a traffic accident, you will be entitled to the amount of damages you can prove, until you have been compensated in an amount that puts you in at least as good a position as you would have been had the accident never happened (to the extent that money damages can accomplish this goal). You may be compensated less than this, or nothing at all, if the accident was partly your fault.
Economic Damages: Medical Expenses
You are entitled to reimbursement for all of the medical expenses that you suffered as a result of the accident. If your injuries require long-term treatment, however, you will need to calculate your estimated future medical expenses, which may require the services of a medical expert. Your medical records are the key evidence in establishing your medical expenses.
Economic Damages: Lost Earnings
If you were out of work due to the accident and lost earnings as a result, you will be entitled to reimbursement for this amount. If your injuries involve long-term disability and you find yourself unable to perform your former job duties due to the accident, you will be entitled to an amount that represents your anticipated future lost earnings.
Economic Damages: Incidental Expenses
You may incur numerous incidental expenses as a result of the accident – travel expenses to and from health care facilities, day care for your children, and other out-of-pocket expenses. You are entitled to reimbursement for these expenses. Courts normally do not reimburse plaintiffs for attorneys’ fees; in any case many if not most personal injury lawyers will charge you based on a percentage of your damages.
Non-Economic Damages: Pain and Suffering and Other Intangible Losses
Non-economic damages include “pain and suffering”, “mental anguish”, “loss of consortium” and other intangible losses due to your emotional state or your psychological losses (inability to perform daily routines such as exercise, for example). In cases of serious injury, non-economic damages may be awarded
in amounts that exceed the total amount of economic damages (three to five times as much in some cases). In most states, you must demonstrate a physical injury before you will become eligible for non-economic damages (in wrongful death cases, the death of the victim is sufficient).
Wrongful Death Damages
In a wrongful death case, a close relative of a deceased victim or the personal representative of the deceased victim’s estate (depending on which state) may file a lawsuit against a defendant who caused the victim’s death. Available damages include funeral and burial expenses, loss of financial support, and psychological losses such as loss of counsel and guidance or loss of companionship. State laws differ on exactly the type of damages available.
Although most states allow the award punitive damages, courts are reluctant to do so very often. Normally, awarding punitive damages requires some sort of outrageous conduct on the part of a defendant, and many states require the plaintiff to meet the higher “clear and convincing evidence” standard of proof. Punitive damages are awarded to punish the defendant, and they can be awarded in amounts that far exceed actual losses. Some states, for example, will allow you to sue an intoxicated driver for punitive damages. However, some states cap the amount of punitive damages that can be awarded.
Many states will reduce your damages if the accident was partly your fault. A few states will throw out your case if you were even one percent at fault. Other states will reduce your damages in exact proportion to your percentage of fault (40 percent, for example). Most states apply a cutoff – 50 or 51 percent – that will result in the immediate dismissal of your case with zero damages.