What Compensation Is Available in a Personal Injury or Wrongful Death Case?
When it’s all said and done, a personal injury or wrongful death case is all about compensating the victims for their loss. It’s about maximizing the money damages that you are entitled to by law. In a civil case, no one is going to jail and no one is going to be found guilty of a crime.
Having said that, the question we normally get is, “What compensation am I entitled to in my personal injury or wrongful death case?”
Before sharing our detailed response, we do want you to know that in our opinion, the ability to maximize the amount of compensation you receive in a case has more to do with the experience and reputation of your lawyer than it does with the rules and laws discussed below.
What we mean is that good lawyers know what legal “buttons need to be pushed” to get the insurance company for the other side to offer their insurance policy limits during settlement negotiations. If a jury trial becomes necessary, these same lawyers know how to effectively present evidence and argue your case to maximize your chances of the jury returning with a high verdict in your favor.
Frankly, it’s as much of an art as anything else. Good lawyers are perceptive and know how to “read” the witnesses, opposing party, and even a jury of 12 strangers. While all cases are different, experienced trial lawyers know how to develop rapport with your jury so that early in the trial, the jury is already on your side and the only question remaining is how much are they allowed to award you in their verdict.
Having briefly touched upon the very real “art” of maximizing your compensation, let’s talk a bit about what the law provides for.
In most California cases and at the very least, a person who has been injured or a family who has lost a loved one through the fault of another is entitled to “be made whole” or to be restored insofar as is possible to his or her pre-injury status through “compensatory” damages. In California, this right is established by Civil Code Sections 3281 and 3333.
Generally speaking, this includes being fully compensated for all economic damages such as medical bills, property damage and lost wages and non-economic damages such as emotional distress and pain and suffering. Past, present and future damages are normally discounted to their present lump sum value. In many instances, experts are used to help establish and prove these damages.
Depending on the facts of your case, these damages might include one or more of the following:
An injury victim is entitled to the reasonable value of all medical expenses that have been incurred, and are reasonably expected to be incurred in the future, as a result of the injury or death. Medical bills, diagnostic tests, medical reports, and doctors’ testimony are all used to prove these damages.
Loss of Earnings
When your injury prevents you from being able to work, you are generally entitled to the reasonable value of working time lost or expected to be lost on account of the injury or death. Wages, commissions, bonuses, fringe benefits, and all other earnings are compensable damages. This also includes an “impaired earning capacity” which simply refers to the extent to which the injury has interfered with an injured person’s ability to advance to a better paying position or alternative career.
Pain and Suffering
Physical and emotional pain and suffering can be devastating to a personal injury victim. In many instances, this is usually the most valuable element of a bodily injury claim and includes compensation for the past, present, and future pain and suffering an injured person goes through or is expected to go through because of an accident. Reasonableness is the only limit on the amount of pain and suffering damages which can be awarded (Civil Code Section 3259).
In some cases, an injured party may be entitled to reasonable compensation for all fear, anxiety, and other emotional distress suffered or to be suffered in the future. Additional related “intangible damages” may also be awarded to compensate an injured victim for the impaired enjoyment of life (an inability to enjoy life), disfigurement, and the shorting of life expectancy.
Property losses such as damage to personal property or to an automobile in a vehicle collision are also recoverable damages (Civil Code Section 3281). If property is lost, completely destroyed, or beyond repair, damages are usually based upon the fair market value at the time of the loss. However, if the property can be repaired, then the proper damages are either the cost of repairs or the difference in the property’s value before and after the accident.
If it is proven by clear and convincing evidence that the responsible party is guilty of oppression, fraud, or malice, an injured party may also be entitled to punitive damages in an amount to punish the defendant (Civil Code Section 3294a). Developing case law is setting limits at to the amount of punitive damages that can be awarded in any given case.
Wrongful Death Cases
When negligent or wrongful conduct causes a wrongful death, the damages are slightly different. For example, each wrongful death claimant is entitled to damages for all detriment suffered and is likely to suffer in the future. This not only includes the “necessities of life” (food, clothing, shelter) but also any financial contributions the decedent would have made.
Lost services, advice, or training are compensable damages in a wrongful death case. Out of pocket funeral and burial expenses are also normally included in most wrongful death cases.
Most families who experience a wrongful death are surprised to learn that a claimant’s grief, sorrow, and mental suffering relating to the wrongful death are not compensable damages. Having said that, these victims are entitled to receive compensation for the loss of love, companionship, comfort, affection, society, solace, or moral support.
Find out more about your right to compensation by calling our offices at (800) 661-7044.