Since l984, my firm has worked with countless numbers of “auto accident injury” clients. Most people who have become clients of mine have initially been bewildered because of the complexity involved. My hope is to clear up some of the terms in order to make this area more understandable to the average person.
First of all, when someone is injured they potentially become a “plaintiff”. A plaintiff is someone who has sustained “damages” as a result of the “negligence” of another individual. The person who caused the damages is called the “defendant”. Negligence in its simplist terms is a concept by which someone’s careless actions harm someone else. Most of the concepts in negligence look at an individual’s actions from the standpoint of a “reasonable person”. Someone’s actions have to be “foreseeable” to be considered negligent. A defendant has to be able to appreciate that their conduct could cause harm to someone else. In an “automobile accident injury claim”, the defendant can be careless or “negligent” in a number of ways. Our court system provides “jury instructions” which describe various types of “negligent”actions. For example, it is normally considered negligent for someone to strike the rear of another driver’s vehicle. If a case goes to trial, a jury will be instructed on the law and the instructions will explain this to the jury. On the other hand, a defendant can argue that the other driver came to a “sudden unexpected stop”. This can also be considered negligence. Where both drivers share in the fault, this is called “comparative negligence”or “comparative fault”. If a driver,for example, is found to be 50% at fault, then he will only have to compensate the other driver for 50% of the driver’s damages.
Each driver is required to carry “liability insurance”. When a defendant is careless and injures another person, then damages will be paid to the other person from the defendant’s “liability policy”. If the person causing the damage is not insured, then a plaintiff can recover their personal injury damages out of their own “uninsured motorist policy”. On the other hand, if the other driver has insurance, but it is inadequate, then a plaintiff may look to their own policy for something that is called “underinsured motorist coverage”. This provides for additional damages which can be recovered over and above the amount of the “policy limits” of other driver’s policy. The uninsured motorist and underinsured motorist coverages do not cover damages to the plaintiff’s car. This would be covered by the plaintiff’s “collision coverage”. When someone buys collision coverage, they choose the amount of their “deductible”, which is the amount which has to be paid out of the plaintiff’s pocket when a car is damaged.
In some circumstances, the defendant may be disputing the case. Oftentimes, a plaintiff will have their car repaired by going through their own collision policy. Under these circumstances, the plaintiff’s insurance company will attempt to go through “insurance arbitration” and will try to collect and return the deductible to the plaintiff.
When there is “property damage” to a plaintiff’s car, the car may be repairable, or it may be “totaled”. A car is “totaled” when it would simply cost more to repair the car than what the car is worth. When a car is totaled, the insurance company owes what is known as the “market value” of the car. This is the amount that the car could have been sold for in the open market prior to the collision. The insurance company will often retain the totaled vehicle which is called “salvage” since they are purchasing the totaled car. They will then sell the working parts to a junkyard or parts dealer. If the plaintiff chooses to keep the car, the he will receive the value of the car, minus the” salvage value”
With regard to a plaintiff’s injuries there are several types of damages. The first type of damage would be classified as “financial damages” or “economic damages”. These are the amount of out-of-pocket expenses sustained by the plaintiff. Lawyers and insurance adjusters sometimes refer to these as “special damages” or “specials” . Financial damages would include payment for medical bills and lost wages. The second kind of damages would be “pain and suffering damages”. I like to think of pain and suffering as being divided into three categories. First, there is past pain and suffering which takes into consideration the pain and discomfort immediately of the plaintiff following the accident. There is also present pain and suffering which is what a person is living with on a daily basis. Finally, sometimes injuries do not heal completely. The third category, then, would be damages for “future pain and suffering”. This would include “permanent disability” which would limit someone’s ability to function. For example, if a plaintiff has injured their right hand and they will permanently have a loss of grip strength, then a jury may consider this in awarding damages. On the financial side, if a plaintiff is unable to work in their normal full capacity, there may be “future economic damages”. A jury can take into account that if plaintiff will be losing income in the future because they either can’t work, or they can’t earn as much as they were previously earning.
In any event, this is my humble attempt to clear up some of the terminology which is used in car accident cases. Of course, how damages will be computed will ultimately be based upon where a case could end up going to trial if it cannot be settled. Some juries are much more generous in awarding damages for and other juries are known for being more stingy. A plaintiff lawyer’s goal in “settlement negotiations” is to get as much or more for his client than what he would than what likey receive from a jury. If the case is to trial then to goal is to receive the highest possible verdict for his client.
Submitted by Jeff Swaney FREE CONSULTATION (314) 310-8373