Getting something is the goal of any civil lawsuit, auto accident insurance claim, or workers comp case. Someone wronged you – or is about to wrong you – and you want the responsible party or a court (or administrative agency) to do something about it.
This article explains the law of remedies – what acts a court of law can take to enforce your rights, penalize the responsible party, or compensate you for damages resulting from another person’s (or company’s) negligent or wrongful act. These judicial remedies come from the common law, statutes, court and administrative agency rules, and judicial precedent (case law).
Knowing what remedies are available – and what causes of action to bring to get them – is necessary to use the legal system to make you whole when you have suffered harm.
Understanding potential equitable and legal remedies will also help you negotiate a fair settlement of your case.
If you have a question about a specific cause of action or remedy and would like a free consultation with a top-rated personal injury attorney, call me: (804) 251-1620 or (757) 810-5614. My firm specializes in tort law, and we want to help you and your family win.
The Tenth Edition of Black’s Law Dictionary defines remedy as “the means of enforcing a right or preventing or redressing a wrong.”
The law of remedies is considered a mixture of substantive and procedural law.
First, the court (judge or jury) decides whether you have met your burden of proof under the substantive law. Then, if so, it determines what you get under applicable remedies law.
In Virginia, all legal claims are either ex contractu (arising from a contractual relationship) or ex delicto (stemming from the breach of a tort duty).
The type of claim often determines the remedies available and the applicable statute of limitations. Therefore, your attorney may bring a claim under a tort theory – even if it stems from a breach of contract – if the tort claim gives you a better chance of obtaining the type of remedy you want. For example, you might prefer monetary damages to rescission or specific performance of the contract.
Evaluating whether a claim sounds in tort or contract (or both) can be difficult. The result depends on the source of the duty violated.
To avoid turning every breach of contract into a tort, the Virginia Supreme Court has established general rules.
Under these rules, the law of torts provides remedies only for the violation of specific common law and statutory duties involving the safety of persons and property, which courts and legislatures (General Assembly, Congress, etc.) impose to protect societal interests.
In contrast, contract law provides damages for losses resulting from a party’s breach of an agreement.
The law distinguishes legal and equitable relief.
Legal remedies are those that allow you to recover money.
Equitable remedies are those that provide non-monetary relief.
In the past, different pleading and procedural rules applied depending on the type of remedy sought. However, many states (including Virginia) have merged the practice of law and equity. This has blurred the distinction between these remedies when pleading a cause of action.
For example, Virginia recognizes a “single form of action” – civil action. And it allows plaintiffs to pursue multiple theories of liability and grounds for recovery within a single case. Therefore, it is common to seek both legal and equitable relief in the same lawsuit.
A remedy provides either substitution or specific relief.
Substitutionary remedies give you something other than what you lost. Usually, this means a sum of money in exchange for the harm suffered.
Examples include the court awarding money when:
Workers comp benefits are another form of substitutionary relief. You receive lifetime medical coverage, wage loss benefits, and compensation for permanent loss of use (PPD) when your functional ability decreases and prevents you from returning to your regular job.
In contrast, specific remedies award you what the contract promised or what you had before a tort caused damage.
For example, a court awards a specific remedy by ordering a defendant automobile dealer to deliver the car you bought.
Another example is the court ordering the defendant to repair or replace a fence damaged by its negligent act.
A single lawsuit can provide both specific relief and substitutionary relief.
For example, you enter into a contract to purchase a painting from an art gallery. But the gallery refuses to deliver the artwork after you buy it.
Your claim can ask the court to order the defendant gallery to deliver the item (specific relief) and award money for any damage to the painting’s quality or lost income from not having the artwork on time (substitute relief).
Forms of legal relief are sometimes categorized based on their purpose: damage remedies, coercive remedies, declaratory remedies, and restitution.
Damages are called legal remedies, and attorneys and courts characterize them as:
Nominal Damages
You may receive nominal damages if you prove the defendant’s conduct wronged you, but you suffered little or no actual harm.
Nominal damages are usually small and symbolic.
Though nominal damages are common in cases involving civil liberties violations based on constitutional rights, they are less common in personal injury actions with physical harm, medical bills, and property damage.
Compensatory Damages
Compensatory damages are paid directly to you for the loss and injury you suffered because of the defendant’s acts or omissions.
The purpose of compensatory damages is to make you whole for every loss you suffered, including physical and mental harm and property damage.
Punitive Damages
Punitive damages are money damages awarded in addition to actual damages to punish the defendant for acting recklessly or with malice or deceit. Their purpose is to deter this type of conduct through punishment.
Some states (including Virginia) put a cap on punitive damages, so you will want to plead your case and ask for legal relief in a specific way to avoid the judge reducing the jury’s verdict.
Liquidated Damages
An award of liquidated damages provides a sum of money based on a formula or fixed numbers established by the parties to a contract at the time of signing.
Liquidated damages are common in construction contracts. For example, the agreement may provide that the general contractor will complete the project by a specific date, and if it does not, it must pay $1,000 in liquidated damages for each late delay.
Courts asked to enforce a liquidated damages provision in a contract will analyze the reasonableness of the amount compared to the actual harm the breach caused and whether the contractual provision disguises punitive damages under the term liquidated damages.
Statutory Damages
Statutory damages refer to damages provided by statute.
Some laws provide for specific monetary awards or award you a multiple of the actual damages when you prove the defendant’s wrongful act harmed you.
For example, some statues provide double or treble (triple) damages. These increased damages are sometimes called enhanced damages, particularly in patent law.
Reliance Damages
Reliance damages cover financial losses incurred by relying on the contract.
Consequential Damages
Consequential damages (also called indirect damages) compensate you for the indirect losses from the harmful act.
For example, payment for loss of goodwill resulting from an inability to deliver goods to customers because of the defendant’s act is a form of consequential damages.
Incidental Damages
Incidental damages are costs and expenses you have to offset other losses caused by the defendant’s breach of contract.
You have most likely heard the term “incidental damages” when checking into a hotel.
Another example of incidental damages involves job search costs when an employer breaches your employment contract and wrongfully terminates you.
A court can issue an injunction, a court order directing the defendant to do (or refrain from doing) some act or risk punishment.
The court’s contempt power backs the injunction – the ability to imprison or fine a person who fails to comply with a proper order or shows contempt for the judicial process.
An injunction is the most common type of equitable remedy. It comes in two forms.
A “preliminary injunction” is a temporary court order preserving the status quo until a full trial or hearing on the merits.
In contrast, a “permanent injunction” is a final order that remains in place until modified by the court or the underlying facts change.
The remedy of restitution (sometimes called unjust enrichment) is based on the belief that a person who has taken your property should return it.
Restitution seeks to deprive a defendant of any gains from the wrongful conduct, including money produced by the misuse of your property.
You may seek specific restitution, which is the exact amount or item taken from you, or a return of the value of what was taken.
Examples of remedies based on restitution include:
Accounting for Profits
Accounting for profits is an equitable remedy used to determine the amount of gains the defendant received from breaching the fiduciary relationship with the plaintiff.
Constructive Trust
A constructive trust is an equitable remedy where the court recognizes you have a better right to specific property than the person with legal title.
For example, the court may impose a constructive trust giving you a right to certain property instead of money damages if it finds the defendant acquired the property by fraud.
There is no trustee. Instead, the defendant hands the property (or transfers it) to you.
Detinue
Detinue is a common law action to recover property wrongfully taken by the defendant.
Ejectment
Ejectment is a legal action to eject an owner or occupier from a specific property.
To win an ejectment claim, you must have title to the land, have been wrongfully dispossessed or removed, and suffered damages.
Equitable Lien
An equitable lien is a lien (security interest) on the defendant’s property.
You do not get possession of the property. Instead, you have a lien that gives you the right to have your funds returned from the defendant.
Reformation (also called Rectification)
Reformation is an equitable remedy where the court modifies a written agreement to reflect the parties’ intent.
The court will require a showing of mutual mistake (the parties meant the contract to state something else) or fraud (one party manipulated the other into signing) before reforming the contract.
Rescission
Rescission is an equitable remedy that allows you to rescind (undo) a contract you entered due to fraud or misrepresentation or when the other party breached the contract.
For example, the parties may rescind a workers compensation settlement (for any reason within thirty days, or for fraud or mutual mistake beyond that period). However, you must return any funds you received from the contract.
Specific Performance
This remedy awards you the performance you were promised by the contract, or repairs the harm caused by the tort.
Subrogation
Subrogation refers to the substitution of one party for another whose debt the party paid.
For example, a workers comp insurer such as Travelers or an employer such as Amazon, Target, or Walmart has subrogation rights (in the form of a workers comp lien) when it pays benefits for injuries caused by a third party.
You must protect the insurer’s subrogation rights (or it can pursue an action against the third party on its own) by paying back the benefits received from the verdict or settlement of your third-party case.
Declaratory relief (declaratory judgment) is available in some situations.
A declaratory judgment is a legal ruling determining the parties’ rights, obligations, and responsibilities under a specific set of facts. In many cases it involves the interpretation of a contract. The court issues the ruling before any party suffers losses.
For example, a small business may ask the court to determine whether an insurance carrier must provide coverage (and the cost of the legal defense) under an insurance policy. This is called a “dec action.”
Legal remedies are determined on a case-by-case basis and depend on the cause of action brought.
To learn more about the types of judicial remedies and which ones you may be entitled to, call me for a free consultation: (804) 251-1620 or (757) 810-5614. We help accident victims and wronged individuals and small businesses get the legal relief they deserve.