Damages & Coverages That You Are Potentially Entitled To In A Personal Injury Claim
Damages typically fall into two separate categories. Special damages (also known as pecuniary damages) are those that are measurable. These damages include such things as lost wages from missed work and the cost of medical treatment for your injuries. General damages, on the other hand, include non-measurable things like pain and suffering, emotional distress, disfigurement from scarring, and the loss of enjoyment of life.
Also, you should note that there is a difference between lost wages from being unable to work and diminished wages because you are injured. Lost wages are provable from your work history and sick days documented by your employer’s work records for you. Diminished wages (we usually refer to them as “impaired earning capacity”) mean you may have lost the ability to earn as high of a future income or to advance in your career because of the injuries you sustained in the accident, or from the limitations that those injuries imposed upon your life Impaired earning capacity can be measured, but because it is forward-looking (rather than a documentable past lost), it is based upon expert opinions and can’t be stated with 100% certainty. Not all cases involve impaired earning capacity. When they do, they will be questioned by the insurance company for the other side – often by the presentation of their own expert testimony.
Damages & Coverages That You Are Potentially Entitled To In A Wrongful Death Claim
In Indiana, there are three versions of the Wrongful Death Act. (We spoke about this earlier in the book under the chapter titled “Personal Injury & Wrongful Death Claims 101”.)
Two versions of the act govern the death of an adult and one governs the death of a child. In each of these three versions, the personal representative of the estate is the only person allowed to recover damages. And in all wrongful death cases, the personal representative, on behalf of the estate, is entitled to recover funeral and burial expenses as well as medical and hospital expenses.
In a situation where a parent dies with no surviving spouse or dependent children, the adult children can recover:
- Hospital Fees,
- Medical Bills,
- Funeral Costs,
- Burial Expenses,
- Additionally, compensation for the loss of love and affection of the deceased parent.
(Damages for the loss of love and affection are limited to $300,000, they must be recovered by the estate, and they must be divided among all the adult children of the person who has passed. However, the amount does not have to be divided equally between the surviving children. Ultimately, it is up to each of the children to make the case as to what their lost love and affection is worth. To avoid disputes, it is common for them to reach an agreement rather then go to court and have a judge decide).
In the case of the wrongful death of a child, there is an additional component that you would likely not expect. Parents can recover from the ”loss of services” of the child. To understand this, you have to remember that Indiana law has its roots in a time when children were servants of the household who provided very valuable services, such as farming and household chores. Consequently, the loss of the child’s services was established as a recoverable damage and remains an element of damages to this day.
The key to understanding the three aspects of the wrongful death act is to recognize that, unlike in a regular personal injury claim, the damages in wrongful death actions are those allowable damages suffered by the survivors, not by the person who was injured and died. As such, this rule regarding who can pursue the claim is why it is important in the case of personal injury/wrongful death that you seek an attorney as soon as possible.
The Difficulty Of Proving Damages In A Wrongful Death Case
The categories of damages you can recover in a wrongful death will be different, depending on whether the person who passed was:
- An adult with dependent minor children;
- An adult with independent adult children;
- Married or Unmarried;
- A minor child.
It should be noted that in wrongful death cases, there tends to be more sympathy directed toward cases where the victim is younger. This is perhaps a macabre thing to think about, but it tends to be true in many cases of this nature.
For example, the death of a child has an emotional impact that very few people cannot sympathize with. On the other hand, if you have a 93-year-old grandmother who is killed in a car crash, there’s a human tendency to focus on grandma having lived a good, long life. Insurance companies might argue that there is less reason for a comprehensive payout because there were “fewer years ahead of that person”.
For personal injury claims, an experienced lawyer understands that jurors are human and that when they deliberate, they often think of things and consider factors that may or may not be argued in evidence. In injury and death cases, the attorney will seek to identify the bias or predisposition that may exist and present evidence to help the jurors identify with the tragedy of each particular loss. In a wrongful death, even though the injury or the damages you recover are not for the deceased child or parent, the sympathy that each has is likely to bleed over into the awardable damages for the survivors.
Determining Future Medical Treatment
In situations where a catastrophic injury has occurred and someone needs to be medically or surgically “put back together”, or where the injury is simply permanent in nature, you have to consider the future medical or surgical procedures and treatment that may be required down the road. You have to remember that recovery will be ongoing, or that there is now a condition that will require treatment for the rest of your life.
Where future medical treatment is going to be required, any recovery should include the cost of that treatment. As with impaired earning capacity, or future lost wages, estimating such things with as much accuracy as possible is a must. Presenting a case for future medical treatment and expense will require the testimony of at least two medical professionals. Typically, an opinion about the need for future procedures can come from your treating physician. The cost of that, however, will most often come from the testimony of another expert known as a “life care planner.” A good life care planner will be a nurse or doctor with specialized training or experience that allows them to qualify as an expert in your case and to testify with reasonable certainty about the future costs that will be incurred for medical treatment and care.
The defense has the option of having their own evaluation done on your injuries, which may counter your medical professional’s assessment. This is known as a “defense medical examination.” Insurance companies are known to hire the same doctors, who often receive a substantial portion of their income from this type of work, and who tend to provide very “conservative” opinions about the nature and extent of plaintiffs’ injuries. These opinions come in varying form, but they fall into just a few categories. The defense’s experts may say that:
- You were not really injured (or that your injuries have fully healed);
- You are exaggerating the nature or extent of your pain and limitations;
- You really were injured, but your injuries are not permanent; or
- The claimed need for future treatment is either exaggerated or outright false.
When this happens, there are many options available to defend against these types of attacks. How it is addressed will depend on the credibility of the injured party, the availability of independent evidence of the ongoing limitations and impact on your life, and the personality and specific testimony of the defense expert. Where the client truly is hurt, and where the injuries and the treatment they required truly have had a negative impact on the client’s life, there should be unbiased evidence that can be presented to support the claims. And depending on the nature of the defense expert’s testimony, an experienced personal injury lawyer may be able to make the defense experts appear to be nothing more than unsympathetic (or even, cruel) hired guns who will say whatever the insurance company wants them too. Each case is different, and each response to these types of attacks will need to be specific to the facts at hand.
The point is, when a case does not settle and has to be decided at trial, the outcome will depend upon the human beings that serve on the jury. All humans tend to have some degree of a built-in “B.S. Detector.” The side that wins the trust and sympathy of the jurors almost always comes out on top.
The Time It Takes To Be Compensated
Perhaps the most frustrating aspect of a personal injury claim is the time it takes to get it settled and then get paid. The quickest settlements are those cases where the injuries are so clearly greater than the available insurance policy limits that the insurance company doesn’t even want to spend time trying to negotiate. This happens when the party that caused the injuries has very low policy limits.
In all other cases, where there is enough insurance to cover the damages, the issue that must be resolved is always going to be reaching an agreement on the amount of the damages. To convince the insurance adjuster to pay you what you claim your case is worth, you will have to present documentation of the nature and extent of your injuries – and in the case of ongoing problems, evidence that your injuries and limitations will be permanent. This will require you and your attorney to work with your doctors and other medical providers to obtain your medical records and seek follow-up documentation where the records don’t tell the whole story.
In addition to the medical aspects of your claim, you will also need to present documentation of the income losses – both past and future – that you have incurred. Finally, and often most importantly, you will need to work with your attorney to paint the picture of what your injuries have taken away from you as a human being. It is one thing to tell someone that you have lost the full use of your right hand that you once enjoyed. It is more compelling when you show them that your whole life your favorite hobby was painting, and you can no longer paint.
Once parties reach a settlement with the insurance company, it is typical to have to wait at least two weeks to be compensated for injuries after an accident. In cases where there’s an immediate need, your lawyer may be able to negotiate that the compensation award will be delivered to the plaintiff’s attorney within X number of days.
Settlement funds are almost always distributed as a lump sum, and the check will be payable to both the attorney and the injured party. Both will have to endorse it. Then, the attorney has an obligation to pay off any liens on that settlement. Finally, before issuing payments, the attorney deposits the check into a trust account and, depending upon the amount of the check and the bank’s policy, you may then have to wait for it to clear. Once the funds are available in the trust account, the attorney will issue payments to all lienholders, reimburse himself for expenses, cover the attorney’s fees, and issue the balance to the client.
When settlement funds are issued for a victim who is a minor, there are extra steps that have to be undertaken. By law, minors are deemed to lack the capacity to enter into contracts (and a settlement agreement is a contract). Therefore, the court will want to review and approve any settlement that is reached for a minor. In addition, if the settlement funds being paid out to the minor exceed $10,000.00, Indiana law requires that a guardianship be established so that the funds are accounted for. Doing all of this requires specific court procedures and appearances before the settlement funds can be distributed. Typically, the parents will be appointed to oversee the funds as guardians, but they will need to account for the use of those funds with the court periodically.
One final consideration is the “annuitized” settlement. It is often a good idea to take the settlement in several installments over time, with some interest, rather than as a lump sum. The insurance company is almost always cooperative if they get to create the annuity.
Because insurance companies are not in the business of writing out monthly checks, the practice is for them to purchase an annuity either in-house or through a third-party annuity company.
Consider, for example, that there have been injuries to a child that results in a substantial payment of money. Even though the payment will be made into a guardianship account that is overseen by a parent or guardian, unless protections are put in place, the whole amount will be available to the child when he or she turns 18. Depending upon the amount of money involved, this may not be a wise thing to occur. By creating an annuitized settlement structure, the settlement amount can be invested into an annuity investment that will make payments on dates you select over the period you select. That way, the money does not become available all at once to a young adult with no experience managing money, and it will usually earn some interest over the period before it is paid.
With the guidance of a skilled attorney for Personal Injury Cases, you can have the peace of mind that comes with knowing that we’ll make it look easy.