The likelihood of going to court over your car accident depends on whether you and the defendant can come to an agreement about the value of your case. In determining the value of your case, there are several factors that come into play: special damages, general damages, trial costs, and the risk of having a jury decide for you.
While most states allow lawsuits for any car accident, there are a few states, called no fault states, which only allow a car accident lawsuit in serious cases. In these states, if your accident is not considered serious enough, then you may collect lost wages and medical expenses only to the limits of your insurance policy. In the majority of states, however, you can file a lawsuit no matter how minor your damages may be.
Many factors determine case value. Because unquantifiable injuries are among these factors, the two sides will often disagree on the exact value of your case. But quantifiable damages are typically easier to come to agreement on. Such damages can include: medical expenses (hospital care, physician follow-ups, ER services, etc), lost income for missing work due to injuries, damaged property, etc.
Other, sometimes less-quantifiable, damages can include permanent disfigurement or disability, loss of ability to do household chores, loss of educational or recreational activities, or emotional injuries like pain and suffering or depression. Loss of sexual enjoyment, or loss of consortium, can also be considered. These are among the type of damages known as general damages.
To determine the value of emotional injuries, which are considered general damages, the defendant’s insurance company will usually calculate what they believe the case to be worth by using a damages formula. This includes adding up all of the special damages, which are the medical expenses of the case, and multiplying that total by a number from one to five, but sometimes as high as ten. If the plaintiff’s injuries are relatively minor, the insurance company will use a low number, and in extreme cases where death or severe disability results, they will use a higher number. It is here, when negotiating the value of your case, that your attorney comes into play.
It is also important to remember that some states have a cap on general damages. This means that even in extreme cases, you will not be able to recover past what the state statute allows.
Another important factor in determining your case value is the percentage that each party is at fault. This factor will vary depending on if your state uses a comparative fault, or a contributory fault system, your state is among the majority that uses a comparative fault system, then your percentage of fault will be factored into the total damage formula number. For example, if the value of your case is determined to be $100,000, but you are also determined to be 60% at fault (based on facts and witnesses), you will only recover $40,000. This may seem harsh, but if you were in the above situation in a contributory fault state, you would not be able to recover anything. Contributory fault states generally bar plaintiff recovery if the plaintiff is more than 50% at fault.
In addition to the above factors that go into setting a value on your case, your attorney must also weigh the risk of bringing your case to trial. Settling a case out of court can save a large amount of money, and your attorney will take this into consideration during negotiations with the defendant’s insurance company. For example, if your attorney believes your case is worth $60,000, but the other side is willing to settle for $45,000, this may be a number worth agreeing to if you’re able to avoid the time and expense of a trial. In addition to the expense, there is also the risk that a jury will have a different and lower case value in mind than your attorney. A good way to get a neutral perspective on the case is through mediation. In mediation, a neutral third party who knows the law will give you their opinion on what the case is worth. This will give both parties a better idea of what they could face at trial.
As you can see, there is a lot to take into consideration when determining the value of your case. An experienced personal injury attorney should be your guide through the entire process.