Types of Compensatory Damages

Loss of Income

You are entitled to compensation if your injuries prevent you from working, thereby causing you to lose income. For example, if you are a landscaper who can’t work for a week because you sprained an ankle in an accident, you are entitled to compensation for that week of lost wages. You are also entitled to lost wages if you miss work because of treatment.

If the injury is serious enough and you can no longer perform the duties of your job or occupation as a result, you can sue for “loss of future earning capacity.” For example, if a construction worker who builds custom homes loses a hand in an accident, he or she can sue for loss of future wages. At McPhillips Fitzgerald & Cullum, we work with expert vocational and financial witnesses who can assist in proving the amount of economic loss that will be suffered in the future.

If the accident results in death, a family member can sue on behalf of the deceased person (decedent) for any lost income that the victim would have earned based on the work-life expectancy of the decedent. The future earnings are “discounted” to present value by reducing the total award. Example: Suppose the decedent, who was 55 years old, made $50,000 a year and his or her work life expectancy is another 10 years. A lump-sum payout of $500,000 would be more valuable today than $50,000 over 10 years because you can invest that money. Therefore, the $500,000 would be discounted. Several very complicated formulas are used for discounting.

Cost of Medical Expenses and Treatment

A substantial medical bill is compelling evidence of the seriousness of an injury. Cost of medical care is one of the most important elements that we examine when calculating the potential value of a claim. Obviously, the higher your medical bills, the more damages you are entitled to. In addition, the cost of future medical expenses is an important consideration as well. If you are facing years of treatment that could last a lifetime, then the amount of damages you will be awarded will normally be substantially increased. Proving the amount of future medical care is an area that requires substantial personal injury experience and the use of appropriate experts.

Property Damage

You are entitled to compensation for any damage to your property in addition to your physical injuries. Car damage typically accounts for most property damage awards. In addition to the loss of value or repair costs associated with your vehicle, the contents of your car may also be damaged in an accident, and you can be reimbursed for damage to this property as well.

Property damage valuation is an art form that may require the services of a professional or expert appraiser. If the property has been completely destroyed so that it is of no further use and has no salvage value, the measure of damages can be set at the fair market value of the property immediately before its loss. Property damage is calculated based upon the value of the property prior to the accident, not replacement value.

If the property can be repaired, the amount of damages can be set at the amount it costs to repair the property plus the loss of its use by the owner. If the cost to repair the property exceeds the fair market value of the property before loss, the damages can be limited to the fair market value. In addition to the cost to repair or replace plus loss of use, interest and loss of profits may also be added as elements of damages. Finally, while your vehicle is being repaired, you may be entitled to recover the costs of renting a car or other substitute transportation.

Pain and Suffering

The most personal, and often the most difficult-to-prove element of all damages is the pain and suffering that an injured accident victim has to endure. At McPhillips Fitzgerald & Cullum, we take our job of demonstrating this aspect of your damages very seriously. Though pain can be felt only by you, it can be evidenced by reference to the use of painkillers, the frequency and length of your treatment, the types of treatment you require, and the anticipated recovery time. An attorney from McPhillips Fitzgerald & Cullum will interview you, your spouse if any, and any other witnesses who were familiar with your lifestyle before the accident so that it can be measured in comparison to your lifestyle after the accident. It is important to us to make sure that each and every aspect of your lifestyle that has been compromised is made known to the jury and proven through witness testimony and other evidence. Your loss of enjoyment of life is a compelling element of your claim that requires careful attention and experienced counsel.

Obviously, a person who undergoes several surgeries followed by excruciating physical therapy for a shattered knee will likely receive higher damages for pain and suffering than an accident victim who does not need surgery or physical therapy. Similarly, an injury that takes one year to heal will be worth more in damages than one that takes only two months. In cases where there is a permanent injury, McPhillips Fitzgerald & Cullum will likely employ an expert to testify on your behalf as to the limitations imposed by the permanent condition and the appropriate value of compensation that may be appropriate. A permanent disability will normally increase the damages awarded to you significantly.

Mental Anguish and Emotional Distress

Though mental anguish and emotional distress are often confused with pain and suffering, they are not the same. It can be quite normal for an accident victim to experience some sort of emotional distress in addition to physical pain. Fear, anxiety, shock, grief, mental suffering, shame, and embarrassment are some of the symptoms of mental anguish that can normally result from a traumatic accident.

Example: Suppose a mother pushing her child’s carriage down the sidewalk sees a car about to hit her and her child, but there is nothing she can do. The terror she experiences before the impact is considered mental anguish. States have put limits on who can sue for emotional distress and under what circumstances. The barriers are to prevent a possible proliferation of personal injury lawsuits based solely on mental anguish.

Another limit some states have imposed on emotional distress lawsuits is the extreme and outrageous conduct rule, used in cases where the plaintiff is not injured. For example, if you are suing for emotional distress, among other things, in a libel suit, you would not have to show that the emotional distress resulted in “physical manifestations” – e.g., loss of weight, depression, or ulcers. Correa v. Maimondides Med. Ctr., 629 N.Y.S.2d 673 (Sup. Ct. 1995).

Loss of Consortium

A serious accident can leave a victim in serious pain and permanently disabled. Though those types of damages are separately compensable, personal injury laws also permit injured victims or the relatives of a decedent to sue for “loss of consortium” (the loss of love and companionship), as a result of an accident. A severe and disabling injury can affect a personal relationship in a variety of ways, as where many of the romantic and recreational activities that two spouses once enjoyed together may no longer be possible.

Loss of consortium would also apply if an accident left a husband or wife unable to perform chores that the spouse relied upon. Though this type of recovery usually is less than the amount of recovery awarded for pain and suffering, loss of consortium can be a major element of damages in extraordinary circumstances, as where an accident causes a victim to become paraplegic or otherwise totally disabled.

Lost Opportunity

In addition to lost wages and future lost wages, you may be able to seek compensation for any lost business opportunity resulting from an accident. It is important to be careful when presenting this type of damages to a jury. For example, not every child who suffered a facial scar in an accident “would have been a movie star.” Only where there is ample proof of a lost opportunity should it be presented, otherwise speculative claims may be rejected by a jury and hurt your credibility for recovery on other, more concrete claims.

In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and file a lawsuit prior to the deadline imposed by the statute of limitations. If you or a loved one is a victim of personal injuries, call McPhillips Fitzgerald & Cullum LLP now at 518.792.1174 or submit a simple case review form. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law. See the terms of use.


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