Damages
The next element of a negligence claim is damages. This one is simple. You must have suffered damages of some sort in order to have a cause of action. In other words, if you have no personal injuries or property damage, you have no lawsuit. Damages include monetary losses, often called economic damages, such as medical bills, lost wages, damages to property and other losses which have an easy calculable monetary value.
Damages can also include nonmonetary effects of the accident including such things as injuries, pain and suffering, emotional distress and inability to perform activities at preaccident levels.
As you might have guessed, the most important elements of a personal injury lawsuit based on an car accident are breach of duty and damages. If you are confident that you can convince a jury that the defendant breached a duty which caused you damages, you and your personal injury attorney must next consider what kinds of damages you can claim in order to determine if it will be worth spending the legal fees and costs necessary to sue. In other words, if your only damage from an accident is a bruise on your arm that had little pain and got better in a few days, a jury is not likely to give you much money, if any.
On the other hand, the expenses of bringing suit, including filing fees, deposition fees and other such costs can be hundreds or thousands of dollars. So, an personal injury attorney will not want to sue someone on your behalf if in the end you and the personal injury attorney will ultimately lose money rather than make money.
In order to be worthwhile, it has to be reasonable to believe that a jury would give enough money so that after you pay your personal injury attorney fees (usually one third) plus the costs of brining the action, you have enough left over for you to have made it worthwhile to sue.
No-Fault Systems
Traditionally, personal injury lawsuits centered around the question of who was at fault for an accident. Some states have modified this system in some circumstances so that liability becomes more about insurance and less about fault. To give you an idea of a no-fault system in extreme form, consider the system in Quebec, Canada. (Granted, Quebec is not in the United States; but its system is an extreme example of a no-fault system and will help you to understand the lesser versions used in the U.S.)
In Quebec, there are no lawsuits for personal injuries caused by car accidents. None. First, in Quebec as in all of Canada there is universal healthcare. All citizens are covered by the government healthcare system. So, when there is an car accident, there are no medical bills to worry about.
In addition, if someone cannot work because of their injuries, there are government programs to help with lost wages. Finally, everyone gets paid, by the Quebec government, for pain and suffering that they experience as a result of the accident. Furthermore, everyone involved in the accident gets all of these benefits. It does not matter at all who was at fault for the accident.
This is a true no-fault system because fault is not even considered. In the U.S., some states have begun to implement watered down versions of this type of system. What these systems usually do is categorize personal injuries from car accidents by levels of severity. If the injuries are below a certain level of severity, then each person’s own insurance pays for their medical bills and lost wages and usually there is no payment at all for pain and suffering.
However, if the injuries go over a threshold level of severity, then the traditional fault system kicks in and a lawsuit can be filed for additional medical bills and pain and suffering that exceed the threshold. To help this make more sense, I will use the New York no fault system as an example.
In New York, every motorist is required to purchase $50,000 in no-fault insurance coverage, called Personal Injury Protection or PIP. This coverage will pay for the owner’s medical bills and lost wages (and those of their passengers or someone driving their car with permission) up to $50,000 when caused by an accident. As such, you can never collect the first $50,000 of medical bills and lost wages from the at-fault party to an accident in a lawsuit. In addition, you may only sue an at-fault party to an accident if you sustained what New York calls a “serious injury.”
“Serious injury” means a personal injury which results in:
- death;
- dismemberment;
- significant disfigurement;
- a fracture;
- loss of a fetus;
- permanent loss of use of a body organ, function or system; permanent consequential limitation of use of a body organ or member;
- significant limitation of use of a body function or system; or
- a medically determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person‘s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
In New York, if you sustain a serious injury such as a ruptured disk in your back or a broken leg you can sue the person at fault; but the first $50,000 in medical bills and lost wages given by the jury will be deducted from the total verdict amount by the personal injury judge because those expenses were paid or will be paid by your own insurance. So, if your medical bills and lost wages are less than $50,000 but you have a serious injury, you can only get damages for pain and suffering.
The levels of injuries required in order to go beyond the no-fault system and into the traditional fault system vary in those jurisdictions which have no-fault systems. The threshold may be based on an amount of medical bills, the severity of injury or a combination of the two, like in the New York example above. Generally, contrary to traditional fault based systems, in no-fault systems, the insurance company that pays the no-fault benefits is usually not entitled to subrogation for the amounts it paid.
There is one additional wrinkle that has popped up on the nofault landscape. Pennsylvania has instituted a system wherein a consumer in that state has the option of purchasing one of two different types of automobile insurance policy. First, the consumer may purchase a traditional tort policy. In that situation, if they are in an accident, the traditional tort system will apply to any claim that they might make against another driver. Second, the consumer may purchase a no-fault policy.
No-fault policies are less expensive than traditional polices. However, in Pennsylvania, if the consumer who purchases a no-fault policy is in an accident he cannot make a claim against another driver. Instead, he can only make a claim for no-fault benefits from his own policy.
Just so this is clear, the distinction applies only with regard to what claims one can make if the other driver is at fault for the accident. If you are at fault for the accident, your policy will pay for your liability if the people you injure have a traditional tort policy. Conversely, if they have no-fault policies, their policies not yours will pay them.