When I have initial consultations in car accident personal injury cases, this is one of the most common questions I hear. My short response is “Nobody knows.” Now I’ll give you a longer explanation, although I must leave out some of the finer legal details in order to keep this readable and not put you to sleep.

Legally, what is my claim?

 

There are three main types of civil actions: breach of contract; tort; and statutory/constitutional claims. The damages (money awarded) will depend on the type of claim the plaintiff brings. As I typically deal with auto accidents, this post will focus on the types of claims that typically arise from them.

A claim for negligence against an at-fault driver is a tort. Tort claims are designed to cover wrongful actions as diverse as negligence, defamation, tortious interference with business relations, civil trespass, and intentional infliction of emotional distress. There is no complete list of all torts because they are constantly evolving and vary from state to state. For instance, in certain situations you used to be able to sue someone who promised to marry you but didn’t (breach of promise to marry, or heart balm). You also used to be able to sue a person with whom your spouse had an affair (alienation of affection). As society has changed, those torts are no longer recognized. New torts do not appear very often for two main reasons. First, to quote Ecclesiastes 1:9, “What has been will be again, what has been done will be done again; there is nothing new under the sun.” That is, nearly every situation that can be reasonably imagined has already been litigated somewhere at some time, and there is probably already a tort in existence to cover a particular wrongful act that causes harm. Second, over the last century or so, the legislatures have taken over the creation of new legal actions. Torts are not created by law but rather by court decisions. Since 1900, we have seen laws passed that create the right to bring a personal claim for everything from police brutality to strict products liability to workers’ compensation. With the rise of the statutorily-created right to bring a lawsuit, there has been less of a need for the expansion of court-created torts to cover new situations.

Types of Damages for Car Accident Claims:

Negligence

My clients are injured in auto accidents caused by someone else. In most situations, that means I pursue a claim for negligence against the at-fault driver. In a case like that, my client’s damages can be broken down as follows:

Special Damages (a.k.a. “boardable damages”): These are damages upon which we can reasonably put a dollar amount, although we often must hire one or more experts to do so. Special damages include past and future lost wages, lost earning capacity, and past and future medical expenses.

General Damages: These are damages that cannot easily be valued at a certain amount. They include past and future pain and suffering, past and future loss of enjoyment, permanent physical impairment, disfigurement, humiliation, embarrassment, and loss of consortium.

Punitive Damages or Exemplary Damages: These damages are unlike special and general damages. Those damages are designed to “make the injured party whole,” even though money can rarely make up for things like significant physical pain or permanent impairment. Punitive damages looks primarily at the at-fault driver’s actions and only considers the innocent party’s injuries secondarily. They are only available when the at-fault person was engaged in especially bad, stupid, or evil actions when the innocent party was injured. The purpose of punitive damages is to punish the at-fault party or to make an example out of him in order to deter other members of society from engaging in the same type of recklessly dangerous conduct. The only relationship between punitive damages and the actual general and special damages is that punitive damages must have some rational relationship to the actual damages. For instance, a jury can’t find that a plaintiff suffered $5 in actual damages and then impose $500,000 in punitive damages. The US Supreme Court has said that in the vast majority of cases where punitive damages are awarded, they must be no more than nine times actual damages.

Punitive damages are practically never covered by an at-fault person’s insurance policy. As a practical matter, that means it is very rare that an injured person can collect on a punitive damages claim.

Uninsured or Underinsured Motorist Claims

In some cases the at-fault driver doesn’t have enough insurance to cover my client’s injuries. In other cases, the at-fault driver has no insurance or he flees the scene of the accident and is never identified. In either case, my client might have insurance that applies. If they have uninsured/underinsured (“UM/UIM”) coverage, then their own insurance company “steps into the shoes” of the at-fault driver and is liable for the applicable damages.

There are two main differences between UM/UIM claims and normal BI claims. First, because the insurance company never acted in an outrageous manner to cause the accident, the insurance company is never on the hook for punitive damages. Punitive damages are to punish, and there is no reason to punish an insurance company for something they didn’t do. Second, because a UM/UIM claim is based on the insurance contract rather than negligence, it has a three year statute of limitations rather than the normal two year statute of limitations for negligence. There are other differences as well, but they are fine details that I won’t cover here.

Evaluating the Claim

In order to properly evaluate a claim, your attorney needs to know certain things:

1) What is your past medical treatment and total past medical bills?
2) What is your expected future medical treatment and bills?
3) What is your permanent physical impairment, if any?
4) What are your past and future lost wages?
5) Is your treating physician going to give strong testimony that your injuries and treatment were caused by the accident?
6) How has the accident negatively affected you and your lifestyle?
7) How many experts would be necessary to take your case to trial, and how much would they cost?

And by far the most important question in evaluating your case is:
8) What kinds of awards have local juries given in the past for cases similar to yours?

As you can see, most of the aspects of your case that must be evaluated in order to come up with an expected case value cannot be known until you have either finished treatment or you have reached a point where your future treatment can be reasonably estimated. And that is why, when you first meet with your attorney and you ask him what your case is worth, the only honest answer he can give you is “Nobody knows.”

Rob Collins

Rob Collins is a Delaware personal injury attorney with the law firm Schwartz & Schwartz. Rob sees clients in our Wilmington and Dover offices. If you would like to speak to Rob about your Delaware personal injury case involving a car accident, tractor-trailer collision, motorcycle accident or other road collision, please contact us.

This article is meant for general, educational purposes only. You should not rely upon the information herein as legal advice. By placing this article on our blog to be seen by people using the internet, it is not intended that any attorney-client relationship has been created.