A personal injury claim’s goal is to get money for your damages – as much money as possible.
Showing that the other driver caused the car accident or that a negligent product manufacturer or doctor caused you harm is essential. But it’s only a start. You must also develop and present proof of damages to recover a fair amount for your injuries. Proving liability means nothing if the insurer, judge, or jury don’t believe you suffered losses.
This article’s purpose is to explain the types of damages in personal injury cases and how to prove them. I hope this information helps you persuade the insurance company to agree with your calculation of damages during settlement negotiations or convince the jury to see things your way at trial.
Please email or call me with any questions: (804) 251-1620 or (757) 810-5614. See why other attorneys and accident victims have named me one of Virginia’s best personal injury lawyers.
The law defines damages as the sum of money paid by one person to another as compensation for causing a loss or injury.
Your lawsuit’s purpose is to get a damages award that puts you in the same position you would have been if the injury never happened.
Money damages are the most common type of relief sought by accident victims in tort claims, and there are three types: nominal, compensatory, and punitive damages.
The jury may award a small sum in civil actions for intentional torts such as assault or battery. These damages are not available in negligence claims.
A court may award nominal damages as a token gesture if you prove the other party violated your rights, but you cannot prove actual damages.
Compensatory damages are also called actual damages, tangible damages, and real damages.
The purpose of compensatory damages is to make you whole and to restore you to your pre-injury status.
Compensatory damages make up the bulk of damages awarded in many cases involving auto accidents and negligence.
The purpose of punitive damages is to protect the public, punish the defendant, and deter others from acting similarly. These damages are money awarded in addition to compensatory damages.
Punitive damages are available when the defendant acted intentionally, recklessly, or with “actual malice” or “willful and wanton” negligence.
Actual malice is a “sinister or corrupt motive such as hatred, personal spite, ill will, or a desire to” hurt the accident victim.
Willful and wanton negligence is an “action taken in conscious disregard of another’s rights, or with reckless indifference to consequences that the defendant is aware, from his knowledge of existing circumstances and conditions, would” likely result in causing injury to another.
An example of a case where punitive damages may be awarded is when a habitual offender drives drunk and causes a wreck.
You must prove two things before you can receive a damages award under tort law.
First, you must show that you suffered an injury.
Second, you must prove that the defendant is liable for your injury – under either a strict liability or negligence theory.
The jury decides the verdict amount in a personal injury case.
Though the defendant may attack the verdict as excessive after the trial, the judgment will likely stand if the jury reached it after receiving proper instructions.
Yes, in many jurisdictions.
Under Rule 3:2(c)(ii) of the Supreme Court of Virginia Rules, every legal complaint seeking an award of money damages must state how much money the plaintiff wants. Courts call this statement an ad damnum clause.
You cannot recover more money than you demand in the lawsuit. If the jury awards more, then the defendant can ask the judge to reduce the jury verdict to the complaint’s amount.
You can ask the court for permission to amend the ad damnum clause if you realize you made a mistake after the litigation starts. But proper preparation from the beginning can help you avoid the time and expense of doing so and the risk that the court denies your request to amend the number of money damages sought – limiting how much you receive if the jury awards more than you expected.
Yes.
And I recommend asking the jury to allow a specific damages amount in each case.
Even if you disagree with my approach, there is a reason to spend a lot of time thinking about damages and what you can prove before filing a lawsuit.
The Virginia Code allows the plaintiff and the defendant to tell the jury the damages amount sought. If you claim an unreasonable amount of damages that you cannot prove, the defendant might say to the jury how much money you want to show that you are greedy or undermine your case.
There is no fixed formula to calculate compensatory damages.
Instead, attorneys, claim adjusters, and courts often divide compensatory damages in a personal injury case into two categories.
The first category is “special” damages. Special damages, also called economic losses or pecuniary damages, are your lost earnings, lost earning capacity, permanent disability, and out of pocket expenses.
The second category is “general” damages. These are harms that the law presumes an accident victim suffers because they frequently result from injury.
General damages include pain and suffering, emotional distress, and loss of consortium. These are non-economic damages because you cannot measure them objectively.
There are five sub-categories of special damages in tort claims.
We will review each.
Past Medical Bills
You can recover compensation for reasonable medical expenses, even if someone else paid them at a reduced rate.
Regular medical expenses in personal injury claims include bills for:
The best way to prove medical expenses at trial is to submit the medical records and reports and medical bills into evidence through testimony from a treating physician that the treatment and related bills were reasonable.
Future Medical Expenses
Many catastrophic injuries, including amputations, traumatic brain injury, third-degree burns, fractures, and spinal cord trauma affecting the back and neck, require lifelong treatment. Even after your neurologist, neurosurgeon, or orthopedic surgeon declares you have reached maximum medical improvement (MMI).
You should seek compensation for future medical bills for:
You may also recover damages for the cost of medical monitoring. For example, exposure to toxic chemicals might put you at a greater risk of developing a chronic disease such as cancer. You might be able to recover the cost of medical monitoring for that condition as part of the damages from the event.
To prove future medical expenses related to your injury, hire expert witnesses to calculate and present testimony about the anticipated need for future care and the predicted cost.
Lost Wages
You are entitled to recover compensation for wage and income loss resulting from your injury. This includes your:
When reviewing whether a verdict is excessive or inadequate, courts use gross pay, not your take-home pay after deductions.
Calculating a fair amount is easy if you had steady employment and earned a fixed wage when you were hurt. You multiply your regular wages by the time missed from work.
Calculating proper damages for lost earnings is more difficult if you worked off and on before the injury or if your wages fluctuate frequently or seasonally. But it’s still possible. Present testimony and documentation showing your wages over the past five years if you had steady employment in the past. W-2 forms and state and federal income tax returns are valuable in proving these damages.
Proving lost earnings can also prove challenging if you are a caregiver or homemaker. But there is a way to do it. Several economists have calculated the value of taking care of the home, and you can include the cost of replacement child care for your kids when claiming personal injury damages.
Loss of Earning Capacity
You can claim damages for loss of earning capacity if you do not recover from the injury fully and reenter the workforce or are limited to returning to light-duty work. These damages are also called loss of future earnings or impairment of earning capacity.
Most courts require accident victims to present expert testimony to prove the loss of earning capacity. Speculation is not enough.
This testimony and the other evidence you present should focus on helping the jury understand:
A fixed method to calculate impaired earning capacity increases the likelihood that you will recover these damages.
Permanent Disability and Disfigurement
Damages for permanent disability and disfigurement include payments for:
Some attorneys and adjusters consider these damages to be non-economic losses because they are difficult to measure. But permanent disability and disfigurement damages have measurable and immeasurable parts.
For example, the loss of use of an injured body part is often stated as a percentage impairment in tort cases, and workers comp claims seeking permanent partial disability (PPD). Your attorney will ask you to attend an appointment with a physical therapist or doctor specializing in impairment rating evaluations under the AMA Guides to the Evaluation of Permanent Impairment. This rating equals a dollar amount based on your pre-injury earnings and vocation.
There are two types of general damages in accident claims: past pain and suffering and future pain and suffering.
Past Physical and Mental Pain and Suffering
You may claim damages for past pain and suffering. I recommend analyzing the factors below when determining a fair amount for past physical pain and mental anguish:
Future Physical and Mental Pain
You can also seek compensation for future pain and suffering. These damages are called loss of enjoyment of life or lifestyle damages.
Consider the factors listed in the section above when determining how much to claim in damages.
Yes. You may recover pre-judgment interest and post-judgment interest in a personal injury claim.
In Virginia, the decision to award pre-judgment interest is discretionary. It’s up to the judge or jury, depending on whether you had a bench or jury trial. And you must request it in your complaint.
The decision to award post-judgment interest is mandatory. The court must award post-judgment interest under Code Section 8.01-382.
Post-judgment interest is paid at the rate of six percent, with no compounding.
There are many techniques for presenting proof of damages at the trial:
When calculating damages for future medical expenses or losing earning capacity, consider the time value of money before making a demand or filing the lawsuit. This means calculating the present value of the amount you seek and remembering the impact of inflation.
The present value is the amount of money you need to produce the amount you would have earned or will need for medical care in the future, given a specified rate of return. The rate of return is also called the discount rate or interest rate.
The higher the return rate, the lower the lump sum you will need now to pay for all the damages suffered.
Inflation is an increase in prices and a decrease in the purchase value of money.
Inflation impacts your injury case because it means the dollars the court allows you now will not have as much power in the future.
You can use this information about inflation to push back against the insurance company’s position that the court should reduce the awarded damages to the present value. A failure to consider inflation punishes you for future increases in the cost of living.
No.
You do not have to pay taxes for an award for personal injuries. Neither an injury settlement nor a jury verdict is taxable under Section 104(a)(2) of the Internal Revenue Code.
There is, however, one exception to this rule.
Punitive damages are considered income. You must pay taxes on a punitive damages award even though you do not have to pay taxes for compensatory damages awarded.
Yes.
Virginia follows the collateral source rule in personal injury lawsuits. This rule is also called the collateral benefits rule.
Under this rule, the judge or jury may not consider other payment sources or benefits when deciding the damages owed. Said another way – the court cannot reduce the damages awarded for an illness, injury, or disability by the amount paid by a third party.
These collateral sources may include health or medical insurance, workers compensation benefits (Temporary Total, Lifetime Medical, Lump Sum Settlement), long term disability insurance, employee benefits (sick leave, vacation leave, PTO), or government benefits (treatment through Medicare or Medicaid, SSDI or SSI payments, or Veterans’ Disability benefits).
The other sources, however, may have a right to reimbursement or lien against the damages you receive through the personal injury case. Read my article on the workers comp lien in third-party actions for more information.
Yes.
A trial judge can disturb the jury’s damages award under the maximum recovery rule, or if the judge finds the amount “shocks the conscience” or is “grossly excessive.”
The maximum recovery rule directs the trial judge to determine if the jury verdict exceeds the maximum amount the jury could reasonably find. If so, the judge may reduce the award to the highest amount the judge believes the jury could have properly awarded. This rule gives the trial judge a lot of discretion.
Here is how it works:
The defendant may file a motion for a new trial or a motion to set aside the verdict as excessive if it disagrees with the amount awarded.
The judge has four options when this happens:
Though defendants have many motions available and the right to appeal, the appellate courts uphold most jury verdicts.
Yes – in some states, including Virginia.
You can file a motion for a new trial if you think the verdict is too low.
If the judge finds the jury verdict is inadequate, they can grant the motion or give the defendant the option to pay a larger sum of money set by the court. This procedure is called an additur.
The Supreme Court of Virginia has set forth a rule that a jury award in a personal injury action is inadequate if equal to the exact amount of an accident victim’s medical expenses and other special damages.
The rule’s rationale is that even though the jury found the accident victim suffered an injury and special damages, it failed to allow the victim to recover for pain and suffering and other general damages.
Yes.
Pressure from insurance companies and lobbying groups has persuaded some state legislatures to pass laws limiting how much money you can recover through a lawsuit.
In Virginia, there is no cap on damages in most personal injury cases. This means that state law does not limit how much money a judge or jury can award you after an accident.
There are, however, two exceptions.
First, state law caps medical malpractice damages to a little more than $2 million per claim. If the jury awards you more than $2 million in damages, the judge will reduce the amount because of the applicable statute.
Second, punitive damages in Virginia are capped at $350,000. This limit impacts how you should plead damages in the complaint and the jury instructions you propose.
Make sure that you review the existing caps before filing the lawsuit. Plaintiff attorneys have attacked these state caps on damages as being unconstitutional, with varying success. And some trial lawyer associations have successfully lobbied legislatures to roll back tort deforms.
No.
Under the American Rule, each party to a lawsuit bears its expenses. You will pay attorney fees and reimburse litigation costs from the gross settlement or verdict.
The defendant must pay attorney fees in some types of civil litigation. But it’s rare in personal injury and car wreck cases.
It’s usually easy to get a personal injury settlement.
But receiving a fair settlement amount that covers all your needs is more challenging. And sometimes, it’s necessary to fight for your damages in court.
That’s where my firm comes in. We have helped hundreds of accident victims receive fair personal injury compensation. And we are ready to get results for you.
Call today for a free consultation: (804) 251-1620 or (757) 810-5614. I’ll help you determine your rights and eligibility for money damages and benefits under workers compensation, tort law, and Social Security Disability.