Almost everyone who has a personal injury case will ask their lawyer this question. You need to understand that to be able to determine the worth, or value, of a case, requires knowing three (3) things: 1) Liability, 2) Insurance coverage, and 3) Damages. Each of these three (3) items is critical to determining the value of a case.
Liability:
This means, can the person or entity that caused your injury, now called the “defendant”, be held legally responsible? By law the “defendant” only has to compensate you if the accident and resulting injury was somehow their “fault”. Was the defendant negligent and did that negligence cause your injury. If the answer is “yes” then you have established liability on the part of the defendant that you intend to sue
The next concept to understand in New York is something called “Comparative Negligence”. Comparative Negligence means that the fault or responsibility for an accident is not always 100% either one sides’ fault or the other.
For example, if you are just sitting in your car waiting at a red light and are suddenly struck in the rear, it is easy to see that the fault is clearly 100% the defendant’s fault. But, if it is an “Intersection Collision” and the cameras show that both cars jumped the light, then since the accident was partially both drivers’ faults the “liability” has to be divided, or apportioned, between the drivers of the two cars. This means, for example, if you are found 50% at fault then the money you will be awarded for your injuries will be reduced by the 50% that was your fault-if you are found to be only 10% at fault it is then only reduced by 10% and so forth.
This explains why, before any value can be placed on a personal injury case, the relative strength of the “Liability” and any “Comparative Negligence” must first be evaluated.
Insurance coverage:
If there is insurance then how much insurance does the “defendant” have? If there is no insurance, then what can you collect if you do win your case?
In New York the minimum amount of insurance that is required to drive a motor vehicle is $25,000, So, if for example, you are crossing the street and are struck by a car that only has a $25,000 policy then the most that you can recover is $25,000-regardless of how bad or serious your injuries are! If there is no more insurance to cover the car that hit you then there is no more insurance to collect any money from. If you do have Underinsurance coverage on your vehicle then you may be able to recover compensation from your own insurance companies’ policy.
This means, for example, that if someone is injured by being struck by a car, or trips, slips or falls in a building, or on the sidewalk in front of a building, that the car or building MUST have insurance coverage for you to be able to collect any money for your injuries. If the insurance coverage is limited then your recovery, unfortunately, is also limited.
Damages:
The amount that you can be awarded in Court for injuries suffered in an accident are called your “damages”. Assuming you can establish “Liability” and the “defendant” has “Insurance Coverage” then you need to determine what your injuries are that you can prove were caused by this defendant’s negligence.
Damages consists of three (3) separate categories: 1) lost wages, 2) medical expenses, and 3) pain and suffering:
Lost wages: If you could not work because of your injuries then you are entitled to recover your lost earnings. If your injury will continue to stop you from working after your case is resolved, whether by verdict or settlement, then you are entitled to be compensated for your future loss of earnings as well.
Medical expenses: If you had to pay for your medical treatment that you required because of your injuries then you are entitled to recover your medical expenses. If your injury will continue to require medical treatment after your case is resolved, whether by verdict or settlement, then you are entitled to be compensated for your future medical expenses as well.
Pain and suffering: You are also entitled to be compensated for the pain and suffering and your loss of enjoyment of life you have suffered as a result of your injuries. If your injury will continue to be painful after your case is resolved, whether by verdict or settlement, then you are entitled to be compensated for your future pain and suffering as well.
Everyone understands that to figure out what your lost wages are and what the medical expenses are is just a question of doing the math. When it comes to determining the value of your pain and suffering there are no easy answers. The value to be placed on your pain and suffering is established in done one of two ways-either by a settlement or by a Trial and a verdict from a jury.
If your case is resolved, or settled, by a “settlement” then your lost wages, medical expenses and pain and suffering, for the past and for the future, are not broken out as separate numbers but are all put together into one settlement offer. If you feel that the offer is acceptable to you, and you are satisfied with it, then the case is settled. If it is not acceptable to you, after you try to negotiate to get the highest number as an offer, then the case must go to Trial for a jury to decide.
If your case is decided by a Trial and a verdict is reached by a jury then there is a “verdict sheet” with two questions for the jury to answer:
What do you award the plaintiff for past pain and suffering?
And,
What do you award the plaintiff for future pain and suffering?
You should also be aware that even after a jury verdict the Trial Judge may still reduce your award if the Judge thinks what the jury awarded you was just too high and not consistent with other previous verdicts for similar injuries. After the Judge’s decision the other side can then still appeal to a higher court and also ask that Court to reduce your verdict. This happens because there are no actual monetary guidelines or rules as to how to value your pain and suffering.
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