May 4, 2020 | By Anthony Milano | Read Time: 18 minutesPain & Suffering Calculation in Texas How pain and suffering is calculated in Texas in a personal injury case will depend on where you are in the timeline of your case. The approach to calculating pain and suffering before a trial and during trial are not the same. Insurance companies typically use claims software to calculate pain and suffering. On the other hand, a jury does not use any special formulas, but only their own best judgment based on the evidence presented to them. However, keep in mind that there are many steps that are required before you go to court for a trial. Many personal injury cases settle even before a lawsuit is filed and most settle before trial. Before a trial you may be negotiating with the insurance company to reach a reasonable settlement amount. Alternatively, if your case goes to trial, your attorney may be arguing your case before a jury or judge. We will discuss how pain and suffering is calculated in both situations, how you can maximize your pain and suffering in both instances, how you can prove pain and suffering in court, and look at some real-world Texas settlements and jury verdicts for examples. But first we need to define some terms to better understand Texas pain and suffering law. What Are Damages? Before we can get into calculating pain and suffering, we need to learn some key legal concepts. In any personal injury case based in “negligence,” you need to prove “damages.” “Damages” are the actual harm or injury as a result of the responsible party’s carelessness. These are not presumed in cases where you are claiming someone else’s negligence caused your injuries. You need to prove them with evidence, such as with medical bills. “Compensatory damages” are those that are meant to compensate you for your losses, intending to place you back where you were prior to the accident. In Texas, there are two types of compensatory damages: Special Damages (economic damages) and General Damages (non-economic damages). What Are Special Damages? Special damages, also known as economic damages, are those that can be easily quantifiable. These damages can be proven by medical bills, pay-stubs, or some other evidence showing out-of-pocket expenses that flowed from the injury. These damages are intended to compensate the claimant for monetary losses that were suffered. Special damages include past and future medical expenses, past lost wages, and future loss of earnings. What Are General Damages? General damages are damages that are not so easy to quantify. They are also meant to compensate the claimant for losses, but for those that are not quantified specifically in a dollar value. Texas Civil Practice and Remedies Code Section 41.001(12) specifically lists what are considered general damages, including: Physical pain and suffering; Mental or emotional pain or anguish; Loss of consortium; Disfigurement; Physical impairment; Loss of companionship and society; Inconvenience; Loss of enjoyment of life; Injury to reputation; and All other nonpecuniary losses of any kind other than exemplary damages. What is “Pain & Suffering”? Now that we know how pain and suffering is categorized under the law, what exactly is pain and suffering, anyhow? Pain and suffering damages are awarded for the purpose of compensating a claimant for the physical pain that he/she endures as a result of an injury. This is distinguished from the mental aspects of an injury, known as “mental or emotional pain or anguish.” Pain and suffering strictly concerns the actual physical pain that an injured party feels from a physical injury. Although pain and suffering and mental or emotional pain or anguish are two distinct types of damages, they are often lumped together when submitted to the jury. However, there are many Texas cases that recognize that these are two distinct elements of a plaintiff’s damages. (See Daniels v. Univ. of Tex. Health Science Center of Tyler, No. 12-03-00399-CV, 2005 WL 1642969, at *2 (Tex. App.—Tyler July 13, 2005, no pet.)(mem. op.). Texas law allows recovery for physical pain and suffering in the past and future (See A.T. & S.F. Ry. Co. v. O’Merry, 727 S.W.2d 596, 599-600 (Tex. App. Houston [1st Dist.] 1987, no writ). As you guessed, quantifying someone’s pain in dollars is difficult. Texas courts have stated that there is no definite way to measure pain and suffering in terms of money but that the jury should arrive at some fair compensation based on its “common knowledge and sense of justice.” Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961). Below, we will discuss how pain and suffering are calculated both pre-trial and during trial. Calculating Pain & Suffering Pre-Trial (Claims Software) Before a trial, either before or after a lawsuit is filed, you will be negotiating your case with the insurance company. The claims adjuster will be valuing your case based on a variety of factors. Typically, the large insurance companies use claims software programs such as Colossus, Mitchell Claim IQ, and Claims Outcome Advisor (COA) to calculate settlement offers, especially on soft tissue injury cases (e.g., whiplash, sprains, and strains). They’ll enter in medical billing codes, injury codes, and several other factors to arrive at a settlement range. Typically, these soft-tissue injury cases are handled by low-level adjusters and these adjusters are prohibited from offering anything outside the claims software settlement range, unless you can present “new” information to them. Insurance companies use this software at a varying degree with some heavily relying on the settlement ranges that are provided, such as Allstate. With more serious injuries, the reliance on this software is not as significant. As discussed above, pain and suffering is part of what are called “general damages” and are considered within the software’s algorithm. The nature of the injury and treatment will have a large effect on the amount of pain and suffering and total general damages that is given in any case. Muscle sprains and strains will yield little pain and suffering compensation. In many cases, the insurance company will offer a nominal amount,...
Read More Sep 30, 2019 | By Anthony Milano | Read Time: 14 minutesWhat is a Typical Car Accident Settlement Amount? The Insurance Information Institute reported that in 2017 the average auto liability claim for bodily injury was $15,270 and $3,638 for property damage. According to the Rocky Mountain Insurance Information Association, in 2013 the average bodily injury car accident settlement was $15,443. To get an idea of what these cases are worth when they go before a jury, the National Center for State Courts published data collected in 2001 from several counties throughout the United States, including Bexar, Dallas, El Paso, and Harris counties, that calculated the median jury award for motor vehicle accidents. The median jury award for motor vehicle accidents was $17,544. Unfortunately, these figures don’t tell us much. Since car accident injury settlements are so fact intensive, an average doesn’t provide much help in regard to what a particular case is worth. As discussed below, there are several factors that go into valuing a car accident injury settlement case. Only through experience can someone know how to value a car accident injury case properly. If you feel that the insurance company is undervaluing your case, it’s best to consult an experienced car accident attorney. Don’t Trust “Magic” Formulas or Online Settlement Calculators Many car accident injury victims will Google what a typical or average car accident settlement amount would be for their specific situation. This search will yield many results with websites claiming to give an exact calculation or formula to determine a typical settlement amount for a car accident injury case. Most common is the calculation of taking the dollar amount of the medical bills and lost wages of the injured victim and multiplying it by some arbitrary number (1.5-5) to arrive at a pain and suffering dollar amount, then adding the total amount of medical bills, lost wages, and pain and suffering together. However, this is almost always inaccurate. Neither insurance adjusters nor Texas juries are instructed to use this method to calculate the value of any car accident injury settlement or award. This practice arose in the past from both insurance adjusters and personal injury attorneys “guesstimating” an amount of where an appropriate settlement amount would be for usually minor, soft tissue injuries (e.g., whiplash). The reality is there is no formula or calculator that can provide an actual car accident settlement amount. There are simply too many variables involved in each case to accurately calculate an average or typical car accident settlement amount. However, there are factors that you should know that can affect the value of your case, such as the amount of your “damages,” the calculation of pain and suffering, and other relevant factors. An overview of these points are discussed below, as well as real car accident injury case settlement examples from several different counties in Texas. Before delving further into the discussion of typical or average car accident settlement amounts, it’s important to know what exactly a “settlement” is. What is a Settlement? A settlement is an agreement between parties of a legal dispute which resolves the dispute prior to either filing a lawsuit or proceeding further after a lawsuit is filed. The parties usually agree to settle the underlying dispute for a dollar amount in exchange for releasing the liable party from any further liability. In the car accident context, the liable party’s insurance company would agree to pay the injured party a sum of money in order to release their insured from any further liability. The settlement amount will be an amount both parties feel is fair to settle without proceeding further in the dispute and avoiding further litigation expenses. Keep in mind, insurance companies are businesses with a main goal of maximizing profits. This means they will do their best to pay out as little as possible in settling claims. Depending on the facts of your case, accepting a settlement may make sense. However, there are situations where filing a lawsuit and going all the way to trial is necessary to achieve top dollar for your case. Most Important Factor in Determining Typical Car Accident Settlement Amounts One of the most important factors in determining a typical car accident settlement amount is knowing what your “damages” are. Damages are a term of art in the law meaning the calculation of losses realized in a personal injury case. You must be able to prove damages in order to receive fair value for your car accident injury case. There are two main types of damages, including Compensatory Damages and Punitive Damages, in addition to other sub-categories of Compensatory Damages which are broken down below. Compensatory Damages Compensatory Damages, also known as “actual damages,” are the monetary compensation that are awarded to an injured victim as a result of an accident caused by someone else’s negligence. Compensatory damages are intended to put the injured party back to where they were before the accident and make them “whole.” Special Damages Special Damages or “Specials” are a type of compensatory damages that are quantifiable, such as past and future medical expenses, past lost wages and loss of earning capacity, and other out-of-pocket expenses. You prove these damages by presenting evidence such as medical bills, paycheck stubs, W-2s, or simply a letter from your employer detailing the amount of lost time, your salary, your position at the company, and how many hours you usually work. Lost wages include the time you missed from work and weren’t paid, as well as sick time and vacation time used as a result of the accident. General Damages General Damages, also known as non-economic damages, are another type of compensatory damages that are difficult to quantify. According to Texas Civil Practice and Remedies Code Section 41.001(12), non-economic damages include: Physical pain and suffering; Mental or emotional pain or anguish; Loss of consortium; Disfigurement; Physical impairment; Loss of companionship and society; Inconvenience; Loss of enjoyment of life; Injury to reputation; and All other nonpecuniary losses of any kind other than exemplary damages. Due to the difficulty in calculating General...
Read More Sep 22, 2019 | By Anthony Milano | Read Time: 4 minutesRear-end car accidents are the most common type of collision. Determining who is at fault in a rear-end collision isn’t always as straightforward as you think. There are many scenarios where liability may not necessarily automatically go to the “following” vehicle. In some cases, liability may go either to the “lead” vehicle, the following vehicle, or both. Of course, if either party involved in a rear-end collision is 51% or more at fault in Texas, they are barred from recovering any of their damages such as medical bills, lost wages, or pain and suffering. Distracted Drivers and Rear-end Accidents Rear-end accidents are usually caused by distracted driving, such as texting and driving, or tailgating. The most common types of distracted driving that cause rear-end collisions are smoking, daydreaming, external distractions such as “rubbernecking,” fixing hair or putting on makeup. Proving fault in a rear-end collision involves determining which driver was “negligent.” To prove negligence in Texas, you must show four things: Duty – We all owe each other a duty to exercise reasonable care and drive safely so as not to do anything that will harm any other driver on the road. For example, we all have a duty to pay attention to the car in front of us while we drive in rush hour traffic; Breach of Duty – a breach of duty would be failing to exercise reasonable care and not driving safely, such as by failing to pay attention to the car in front of you as it slowed down in rush hour traffic because you were texting and driving; Causation – the breach of duty (e.g., failing to pay attention to the road and the driver in front of you) causes the accident; and Damages – Damages just mean recognizable and actual losses as the result of the breach in duty. Whiplash or a fractured vertebra in a rear-end collision are great examples of damages. You’ll need to prove damages by providing evidence such as medical bills and lost wages. How to Prove You Were Not At Fault in a Rear-end Collision Usually, it’s easy to see why the following vehicle is at fault in most rear-end collisions. However, there are exceptions to this rule. Even if the following vehicle is negligent, it doesn’t always absolve the lead vehicle completely from liability. The lead vehicle driver may also be driving distracted and may also share some of the liability, proportionate to the amount of their comparative fault. Ways to prove that the lead vehicle’s driver was at least partially at fault would be to provide evidence that they were driving distracted talking on their phone while driving or looking down at their phone and texting. You may prove this by getting their phone records to show that they were sending or receiving text messages or receiving or making phone calls at the time of the accident. However, obtaining the other party’s phone records usually involve filing a lawsuit against them first. In addition, having an independent witness who saw the accident and can verify that the lead driver was on their phone or texting, will also help to prove that they at least shared some fault. When Is a Rear-end Collision Not Your Fault? Factual scenarios when a rear-end collision is not your fault or at least partially the lead vehicle driver’s fault, include when the lead vehicle: Is in reverse and causes the collision. Makes an unsafe turn or lane change by not signaling or suddenly changes lanes, cutting off the following vehicle. Quickly stops unexpectedly for no apparent reason. “Brake checks” the following vehicle. Has turn signals, brake lights or taillights that are not functioning. Is driving at a significantly slower speed than the speed limit (e.g., driving 25 MPH on the freeway). Unsafely pulls out in front of the following vehicle. Injuries Caused by Rear-end Collisions Most rear-end collisions involve a very slowing moving or stopped lead vehicle. The impact, even at low speeds can cause significant injuries to the spine, head, and internal organs. The most common types of injuries caused by a rear-end collision are: Whiplash; Vertebrae fractures; Neck pain; Shoulder pain; Numbness, tingling, and pain in the extremities; Muscle, tendon, or ligament sprains, strains, and tears; Disc herniation; Lower (lumbar) back pain; Middle (thoracic) back pain; Internal bleeding; Traumatic brain injuries, even mild cases that may go undetected through standard testing; Concussions; Headaches; Blurry vision; Dizziness; and Anxiety / Post-Traumatic Stress Syndrome. Rear-end Collision Settlements Rear-end collision settlements are heavily determined on the type of your injuries and medical treatment that you receive. The more serious your injuries, the more likely your settlement will be larger. With “soft tissue” injuries, or those that involve sprains, strains, and bruises, generally, the settlement value tends to be on the lower side of the settlement spectrum. Rear-end collisions where there are more serious injuries, such as traumatic brain injuries, broken bones, or those requiring surgery, generally, the greater the settlement amount. The value of any rear-end collision case relies heavily on the injury severity and the amount of medical bills that have accrued, as a result of the injury. What’s most important in all rear-end accidents is getting the proper medical treatment as quickly as possible. Without providing proof of your injuries to the insurance company through medical bills and other evidence, the more difficult it will be to be fairly compensated for your injuries.
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