I recently received an offer for an auto accident, which I am considering whether to accept or not. The insurance company have made an offer based on my injuries. I was wondering if they take into consideration the emotional aspect of the case, and the trauma that we went through? My life was severly impacted after the accident. For several months I was able to excerise or play sports (Which was a huge part of my life). I now suffer anxiety when I drive and become very scared when travelling as a passenger. And also due to my injuries it is very painful to drive for long periods of time, as the pain in my lower back is too much to deal with? As a result, i am having to seek a change of career local to where i live, to limit the driving I have to do.
There is no correct answer as to how Pain & Suffering is calculated. You have to understand that it is really only something a jury can award you and rarely would an insurance company consider it as a factor in their calculation for your case's value unless the injury is catastrophic. ie. paralysis, or loss of a limb. In an auto accident, in most situations, a jury would have to determine that you suffered a permanent injury before they can even consider it. No permanent injury, no money for pain & suffering. You must also understand that there is more to the pain & suffering jury instruction than just P&S. You also have inconvenience, loss for the capacity of enjoyment of life. All of these must be taken into consideration when presenting your case, from discovery through trial testimony not just by you but by others that knew you both before and after the accident as well as your medical care providers. This should be discussed at length with your lawyer.
As a former bodily injury adjuster who now practices law as a plaintiff's attorney, I can tell you there are no specific formulae for calculating pain and suffering. An outdated rule of thumb is the 3 times your special damages...which roughly means take your special damages and multiply it by three for a value of your case. Many insurance companies use software programs to determine the range of authority in making an offer, they enter the type of injury and the amount of treatment and the program spits out a range of authority and the adjuster is almost always going to offer you the low end of that authority first. That being said, there is no accounting for a person's emotional suffering when using these programs. This is precisely why you should contact an experienced attorney that is a skilled negotiator and has knowledge of not only the law, but how insurance companies value cases.
Pain and suffering is often considered against the size of the hard economic damages.(the more hard economic damages there are (like medical bills, lost wages, property damage to the car) the larger the pain and suffering component. There is no exact rule but a jury is less likely assign much for pain and suffering if the property damage to your car is less than a $1000.00, if you had little or sporadic medical care, and missed no time from work. I think that is just common sense and how typical jurors look at these issues. There are other factors, and so I strongly recommend that you retain an experienced central Florida accident attorney to assist you. You were smart to come to AVVO and I recommend you review AVVO profiles to find a lawyer for your issues. I hope this is helpful.
As most everyone has already stated, there is no hard and fast rule. In my experience on the insurance defense side, much like Mr. Harmon, the old way to look at pain and suffering was to add up all of the economic damages (medical bills, lost wages, loss of earning capacity, etc.) and multiply it by a value somewhere between 2.5 and 4, depending on the accident, the nature of the injuries, effect on the plaintiff's life, etc. Now, juries tend to be a little more particular with their awards, but that also lends to a little more unpredictability. I believe, much like most of my colleagues here, you are doing yourself a disservice by trying to resolve this matter on your own. Since you already have an offer on the table, attorneys will generally work with you on the retainer agreement to only take a fee on any award over and above what you were previously offered. I would at least go into an attorney's office for a free consultation. Good Luck!
First, since you have a lawyer, he or she should explain this to you as they are actually getting paid to do so. Second, there is no clear rule for valuing the damages as you described. Are you entitled to recover for them if they can be proven? Probably. The real issue is a the expense/risk vs. value associated with every personal injury case. For example, lets say the value of the things you described is $10,000.00 added to your case. If to recover that $10,000.00 you are forced to litigate the issue, you end up increasing all attorney's fees from 33 1/3 % to 40% so your net value to you is starting at $6,000.00. To get some the damages you described in front of a jury it will cost minimum $5,000.00 for psych expert to testify about your anxiety, etc. Now your net value is $1,000.00, which you would get after 1-2 years of litigation time, and ONLY if the jury agrees and adds the $10,000.00 in value. If they find only $5,000.00 in added value, you end up -$2,000.00 because the expert and lawyer still get paid, BUT you get $2k less than you might because it dips into your other damage values. THIS is why lawyer focus on clear, recognizable and definable damages, because things like emotional damages are hard to get people to believe, hard to prove and very volatile making them usually cost ineffective and very high risk to pursue.
I would contact an attorney in your state to speak with regarding your case. Many times the insurance companies downplay injuries and quality of life issues. An attorney that works in this area and has the experience should be able to address your concerns. There is no magic book that answers your question as to "how" pain and suffering is calculated. Best of luck.
I assume that you are handling this matter on your own without legal representation. In Texas pain and suffering is an element of damages for which you can receive compensation. This is an intangible amount of damages. Most of the time pain and suffering is dependent upon medical documentation and evidence such as photos which evidence pain and suffering.
Your best bet is to hire a lawyer who specializes in personal injury cases who can appropriately evaluate your case based on the evidence. You should not go at this alone.
There is no formula for calculating pain and suffering. Most times the adjuster bases his or her offer on the out of pocket medical expenses, loss wages and property damage. They typically add some small percent for pain and suffering under the circumstances you described. The ultimate determination as to the amount of "intangible " damages you have suffered is up to 6 stingers/jurors. An experienced attorney will often give suggestions in the closing of trial based on what a person has been through to aid them in coming up with a number. However, the fact of the matter is that 10 different juries will most likely give you 10 different amounts.
It is not "calculated" by the adjustor. Instead, the adjustor feeds the pertinent facts into software that attempts to handicap the likely result based on the place of the case, the reported injuries, the reported bills, etc. A cold approach that will be used until you approach trial, at which time a personal analysis, perhaps by a committee for the carrier, will be used.
Regarding how pain & suffering is calculated in Florida, the insurance company should account for pain & suffering in their offer; you should ensure they know about the extent of your pain & suffering. If you file a lawsuit, the extent of your pain & suffering will be flushed out in discovery and if your case goes before a jury, the jury would be able to specifically award for past and future pain & suffering. You should talk with your lawyer about how to address pain & suffering with the insurance company.
Pain and suffering refers to physical and mental trauma caused by an injury, and is often a significant component of non-economic damages.
If you suffer a personal injury as the result of the actions or negligence of another, you may seek financial compensation for physical or emotional damages.
Written by attorney Kevin P. Landry
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