Injury Compensation Payments
Under the law, injury compensation payments — known as damages — fall into three broad categories.
The name of punitive damages reveals their purpose, punishment for egregious behavior. New York and New Jersey courts rarely award punitive damages. Obtaining compensation with punitive damages requires proof of gross negligence or an intent to cause harm. Meeting either standard is difficult. Further, the quest for punitive damages is futile unless the defendants possess substantial wealth.
Nearly all personal injury settlements and judgments include economic damages. If you can put a price tag on it, it comes under the heading of economic damages. Medical bills and lost wages head the list in this category. Economic damages also encompass an estimate for future medical treatment and therapy. Finally, these damages may also compensate for the loss of future earnings, including reasonable expectations for promotions.
Pain and Suffering
The law recognizes that not all of the harmful consequences of a car accident have price tags. Nonetheless, these harms materially lower an injured person’s quality of life. This impairment may stretch over a finite recovery period, or the victim may have to endure lifelong disability. The payments for these harms take the name of noneconomic damages or — more graphically — pain and suffering compensation. In a legal context, pain refers to physical pain and suffering involves mental anguish.
Examples of post-accident pain and suffering include:
- Impaired relationships with family and friends
- Inability to enjoy favorite activities
- Depression, anxiety or post-traumatic stress disorder
- Sexual dysfunction
- Impaired sleep
In New Jersey and New York, an injured person must first surmount some sizable legal standards before pursuing pain and suffering damages.
Legal Hurdles to Pain and Suffering Compensation
Before pursuing damages of any kind, injured persons in New York and New Jersey must contend with no-fault auto insurance limitations and the comparative fault doctrine.
No-Fault Auto Insurance
In New York, every driver must participate in the state’s no-fault automobile insurance system. New Jersey residents may voluntarily participate in their state’s no-fault setup. Whether mandated or voluntary, a no-fault auto insurance policy narrows an accident victim’s ability to seek damages in a lawsuit.
Indeed, the purpose of no-fault auto insurance is swift compensation for injured drivers and a lower caseload for overburdened state courts. To step outside the no-fault policy and seek damages from a negligent party, a person must have injuries that meet narrowly defined standards of severity.
In New Jersey, a low-cost basic insurance policy locks the holder into the state’s no-fault system. Garden State residents who opt for more expensive insurance policies may choose between two options that define their right to file lawsuits:
- Limited Right to Sue policies permit holders to sue for economic damages. These policyholders may not sue for pain and suffering damages unless their injuries meet New Jersey’s serious injury threshold.
- Unlimited Right to Sue policies open the door for policyholders to pursue all types of damages from negligent parties. These policies carry the highest premiums among the options open to New Jersey residents.
The Comparative Fault Rule
Both New Jersey and New York implement modified comparative fault rules for personal injury lawsuits. Under comparative fault, a judge or jury first decides on an appropriate level of damages to award a plaintiff. Next, the court determines what percentage of fault should fall on the plaintiff’s shoulders. If the court decides the plaintiff bears 10% of the fault for the accident, the court reduces the damage award by 10%.
In New York, plaintiffs must prove that defendants bear at least 51% of the fault for the accident to collect damages. New Jersey’s threshold is an eyelash lower at 50%. In either state, falling below the threshold means a plaintiff collects nothing.
Even though most personal injury lawsuits end with a settlement agreement, the comparative negligence rule looms large. In a settlement negotiation, attorneys for all sides wargame their odds of prevailing in the courtroom and make their estimates of comparative negligence.
Pain and Suffering Calculation Methods
If injured persons can surmount no-fault and comparative negligence rules, they can move to obtain compensation for pain and suffering. With no invoices to work with, it might seem that pain and suffering damages resemble throwing darts at a wall. Happily, decades of settlements and judgments have spurred the creation of rough benchmarks that create a reasonable starting point for damage calculations.
The multiplier method has evolved as the most frequently used approach to calculating pain and suffering damages. With this method, the parties agree to set pain and suffering damages to an amount that equals economic damages times a multiplier factor. That factor is usually a number between 1.5 and 5, with greater pain and suffering earning a higher multiplier.
There is no fixed schedule of injuries that defines the multiplier. Injuries with recovery periods under 18 months may merit multipliers in the lower range. Multiple broken bones can push the multiplier up to three. Permanent disabilities may peg the multiplier at five. Injuries that confine a victim to a care facility may jump the scale and climb to 10.
The Role of Attorneys
It may seem unfair, but a plaintiff with the potential to evoke sympathy from a jury earns a higher multiplier. The same logic applies to injury victims who come across as credible. As with the comparative negligence rule, attorneys for all parties wargame their chances of prevailing before a jury.
With the multiplier method, the skill of a personal injury attorney looms large. An attorney who can assemble a well-documented case for economic damages gives the client a leg up before the multiplier factor even comes into play. A credible slate of witnesses strengthens the case for pain and suffering claims, but not every law firm comes with the resources to mount this effective evidence.
Per Diem Method
The per diem method is an alternative way to calculate pain suffering damages. Though less frequently used than the multiplier approach, per diem — per day — payments make sense in some situations. If an injured person’s prognosis involves a complete recovery, per diem pain and suffering payments covering the estimated time for treatment and therapy make sense.
Regardless of the calculation method, New York and New Jersey are among the few states that do not impose a cap on pain and suffering awards.
The Judd Shaw Injury Law Difference
If you or a loved one have suffered an injury due to another party’s negligence, the Judd Shaw Injury Law team stands ready to help. We aim to ensure that you receive fair injury compensation while you focus on your recovery. Our bilingual team is available 24/7, and we have offices in New York and New Jersey. Consultations are free, and we don’t get paid unless you get paid. If you now confront an injury, we invite you to contact us today.