In personal injury actions – and in most civil suits, generally – the plaintiff suing is entitled to monetary damages. Monetary damages are intended to compensate the plaintiff for their injuries, and, to the degree possible, return the plaintiff to the economic position they enjoyed prior to the occurrence of the injury. Sometimes, however, damage awards are meant for more than simple compensation. In some situations, the courts may seek to make an example of particularly problematic conduct by the defendant, and may award significant punitive damages (intended primarily to punish the defendant, rather than to compensate the plaintiff).
What is fair compensation for one’s injuries? A compromise between the opposing parties may be difficult to reach, as they might disagree on numerous facts, including but not limited to whether the injury was severe enough to warrant the subsequent treatment, whether any wage loss was reasonable, the degree of suffering that the plaintiff endured, and to what extent the injuries have affected the plaintiff’s future economic prospects, among others.
From the very beginning, your personal injury attorney will work with you – taking into account the facts of the case and your records – to assess your damages for your case moving forward. A well-reasoned damages calculation is an effective negotiation tool, and an experienced attorney will know how to assess and represent your damages in a way that improves your chance for success.
If you’d like a basic overview of personal injury law, please read our article here.
What Kinds of Damages are Available?
Damages in California personal injury actions can generally be defined in two broad categories – compensatory damages and punitive damages. Compensatory damages are intended to restore the plaintiff financially after their injury, whereas punitive damages are awarded by the court for the purpose of punishing the defendant’s conduct and for dis-incentivizing that kind of conduct in society. Compensatory damages apply nearly universally in personal injury cases, meaning that the typical plaintiff in a personal injury case will almost always be entitled to make a compensatory damages claim, though the specific losses that the plaintiff asserts may differ depending on the facts of the case.
Compensatory damages can be split further into two categories: special damages and general damages.
Special damages (alternatively, economic damages) are the financial losses that the plaintiff suffered due to their injuries. They are generally predictable and somewhat easier to measure, thanks to record evidence of losses (with the exception of the loss of future earning capacity and loss of career prospects assertions, which tends to be speculative, though still based on existing facts such as education level, age, industry job availability, and pre-injury job performance).
Examples of special, economic damage include…
o In California, thanks to the court decisions in Haniff v. Housing Authority and Nishihama v. City and County of San Francisco, only the amount that your insurance actually paid to the medical provider can be introduced into evidence as special damages. So, for example, if you had surgery where the provider billed your insurance $200,000, but your insurance ultimately negotiated for a $50,000 payment, you cannot thereafter assert that the cost of surgery was $200,000. You will have to accept that the cost of surgery was $50,000, as that was the price actually paid by your insurance.
o Medical expenses also include future medical expenses – such as a scheduled surgery or any other scheduled treatment. Of course, in order to introduce these future expenses into evidence as special damages, your attorney will have to effectively argue that such future treatment is reasonable and necessary.
o If you are a potential plaintiff in a personal injury case, do be sure to maintain records of your medical expenses so that your attorney can assess the damages accurately.
o Essentially, how much money was left unearned from having suffered the injury-at-issue. Wage loss may include lost overtime income, so long as there is evidence demonstrating that the plaintiff would have actually completed the overtime work (perhaps the plaintiff always works overtime during a given season, or perhaps the plaintiff told their supervisor ahead of time that they would be working overtime).
Loss of future earning capacity.
o The loss of your future earning capacity will be determined by offsetting your future earning capacity after the injury against what your future earning capacity would have been had you not been injured. Your attorney may bring in various expert witnesses (medical, career, etc.) to support the loss of future earning capacity assertion. Factors such as your age, education level, pre-injury health, and pre-injury job performance will all play a role in determining to what extent your future earning capacity was affected by the injury.
Property loss and damages.
o This includes all real and personal property (damage to your house, automobile, and other items).
o Includes cost of repairs that may be required to restore the property to its original condition.
General damages (alternatively, noneconomic damages) involve the negative physical and emotional experiences of the plaintiff following the injury, as well as permanent physical and emotional losses. General damages can be somewhat speculative, as aside from an expert’s opinion on the plaintiff’s subjective pain and suffering following the injury, there is really no objective measure for the plaintiff’s general damages.
Examples of general, noneconomic damages include…
Physical disability and impairment resulting from the injury.
o Your attorney will want to accurately represent the effect of the impairment on your overall quality of life – from work, to social situations, to family life, and more.
Overall quality of life issues.
Loss of companionship and consortium.
o Family members of the deceased plaintiff (in wrongful death cases) can make a claim for loss of companionship and loss of consortium, depending on their relationship. Loss of consortium, for example, includes the loss of spousal companionship, financial support, and intimacy.
Physical pain and suffering.
Psychological pain and suffering (alternatively, distress).
As previously stated, punitive damages are awarded in cases where the court determines that it will be beneficial to society-at-large to punish the defendant’s conduct. Many publicized, high money value cases involve punitive damage awards (the punitive damages multiplier may multiply the compensatory damages by three to nine times). Punitive damages are intended to discourage the general public from engaging in similar negative behavior.
Do not expect punitive damages, as they are awarded quite rarely in personal injury actions in California. Unless the defendant has engaged in particularly bad behavior – in effect, intentionally/willfully bad behavior or especially reckless behavior – then punitive damages will be unavailable. A skilled personal injury attorney, however, will attempt to argue that a defendant’s behavior was malicious, willful, or reckless such that punitive damages apply.
In California, though not a given, it is possible to find that a drunk driver was acting maliciously, willfully, or recklessly by driving while voluntarily intoxicated. A skilled attorney who is able to successfully argue this point in your favor may therefore be able to multiply your total damages award by three to nine times.
The Costs of Litigation
Litigation can be costly – and the length and complication of litigation may be difficult to predict at the onset of the case. Over the course of litigation, numerous issues may reveal themselves, from a hostile defendant (and hostile defendant’s counsel), to new information and evidence in the case, requiring further investigation. Further, retaining experts is expensive, and experts are often necessary to many aspects of the case, from assessing the scene of the accident to understanding the biomechanics of the plaintiff’s injury to detailing the affect of plaintiff’s injury on his or her job prospects.
The costs of litigation may cut into your eventual damages award, though, sometimes, the court may require that the defendant pay for the costs of litigation (see California Civil Code of Procedure section 998).
If a section 998 offer is on the table and the parties go to trial, then, in the event that the plaintiff wins – and is awarded damages higher than the section 998 offer – the defendant will have to pay for the plaintiff’s costs of litigation.
Thus, from both an emotional and financial standpoint, it’s usually beneficial for both parties to reach a settlement rather than go to trial, if possible, thereby minimizing the costs of lengthy litigation. Of course, in some cases, going to trial is the best solution. The important thing to remember is to keep your expectations in-check, and to be aware that the situation may change suddenly and unexpectedly. A skilled personal injury attorney will know how to adapt to changes over the course of litigation and will know how to effectively advocate for their client’s interest throughout.
To setup a free consultation with a skilled Oakland personal injury attorney, please call Andrew J. Kopp, P.C.