If you have been injured because of someone else’s carelessness, you can usually seek compensation from the at-fault party’s insurance company by filing what is called a third-party claim.
After establishing that the defendant is the one responsible for your injuries (“liable”), you will also need to present evidence of all your losses associated with the incident (these are referred to as “damages”). The insurance company should compensate you for your medical expenses as well as lost wages, and “pain and suffering.”
In this blog post, we address when an insurance company will provide compensation for pain and suffering, and how these kinds of damages are calculated.
Pain and Suffering Defined
“Pain and suffering” is a legal term that refers to a host of injuries that a plaintiff may suffer as a result of an accident. It encompasses not just physical pain, but also emotional and mental injuries such as fear, insomnia, grief, worry, inconvenience, and even the loss of the enjoyment of life.
In nearly every personal injury case, a plaintiff should recover some amount of pain and suffering, even if only a nominal amount.
How does an insurance company calculate pain and suffering damages?
There is no hard and fast rule for how an insurance company must calculate pain and suffering. Many plaintiff attorneys are trained to use one of two methods for calculating pain and suffering.
Method No. 1: Multiply the plaintiff’s actual damages (medical bills and lost wages) by a certain number, generally between one and five (depending on the severity of the injury). For example, if a plaintiff incurs $3,000 in medical bills related to a broken arm, he might multiply that by three, and conclude that $9,000 represents a reasonable amount for pain and suffering.
Method No. 2: Alternatively, attorneys will use a per diem (Latin meaning “per day”) approach. Under this method, a certain amount — perhaps $100 — is assigned to every day from the day of the accident until the plaintiff reached maximum recovery.
Insurance companies are under no obligation to consider calculating in pain and suffering. In fact, many companies use programs to determine what should be allotted for pain and suffering.
Proving Pain and Suffering
Damages for pain and suffering are certainly recoverable, but how can they be proven? Proof of this type of injury may take many forms, and the more evidence you have to support your claim, the better your chance will be of recovering an amount you find satisfactory.
The extent of your injury and accompanying pain and suffering can be evidenced through documentation such as photographs and personal journals that record the plaintiff’s physical and emotional feelings. Documentation from friends and family can provide additional evidence of the way the particular injury has negatively impacted the plaintiff’s life. Proof of treatment by a mental health professional is also helpful, and is necessary where the plaintiff is claiming injuries such as increased anxiety, insomnia or depression.
How do you know what’s fair?
If the insurance company makes a settlement offer that includes compensation for pain and suffering, how do you know if it’s a reasonable offer?
A reasonable approach is to use either the multiplier method or the per diem method (as discussed above) to get a ballpark figure. Then, consider whether there were additional circumstances that might increase or decrease that amount. For instance, if your injury left you with a permanent scar on your face, it may be reasonable to increase the amount of pain and suffering you deem fair. On the other hand, a minor bump to the head that healed quickly probably is not worth all that much. Keep these factors in mind when considering how the insurance company has valued your pain and suffering, and when deciding whether the insurance company’s offer is reasonable and fair.
For more information on how to protect yourself from insurance companies, contact us.