First, what is my legal claim? There are three main types of civil actions: tort, breach of contract, and statutory/constitutional claims. The damages (money awarded) depends on the type of claim the plaintiff brings. As I deal almost exclusively with auto accidents, this post will focus on the types of claims typically arising from auto accidents: negligence and breach of contract. What is negligence? Negligence is a tort. Tort claims cover all types of wrongful actions, including negligence, defamation, tortious interference with business relations, civil trespass, and intentional infliction of emotional distress. Basically, if someone wrongfully causes you harm, there might be a tort that would let you sue them for it. There is no complete list of all torts because they are constantly evolving and vary from state to state. For instance, in certain situations you used to be able to sue someone who promised to marry you but didn't (breach of promise to marry, or "heart balm"). You also used to be able to sue a person with whom your spouse had an affair (alienation of affection). As society has changed, most states have decided not to recognize those torts any longer. New torts rarely appear for two main reasons. First, to quote Ecclesiastes 1:9, "What has been will be again, what has been done will be done again; there is nothing new under the sun." That is, nearly every situation that can be reasonably imagined has already been litigated somewhere at some time, and there is probably already a tort in existence to cover a particular wrongful act that causes harm. Second, over the last century or so, the legislatures have taken over the creation of new legal actions. Torts aren't created by law but rather by court decisions. Since 1900, we have seen legislatures give rise to the statutory right to bring suit. Due to laws created by legislatures, a person can now bring a personal claim for everything from police brutality to strict products liability (not in Delaware, though) to workers' compensation. With the rise of the statutorily-created right to bring a lawsuit, there has been less of a need for the expansion of court-created torts to cover new situations. How tort claims for negligence apply to auto accident claims Car accidents have been around for as long as cars have been around. While the tort of negligence is older than cars, the facts leading to most auto accidents easily fit into the tort of negligence. A claim for negligence in Delaware has four elements, each of which the plaintiff must prove by a preponderance of the evidence: the existence of a duty of care; the breach of the duty of care; causation; and damages. For car accidents, a typical case looks like this: there is a general duty to other members of the driving public to follow the Rules of the Road and drive safely; some driver fails to follow the Rules of the Road or otherwise drives unsafely and causes an accident; my client suffers damages (i.e., personal injury, property damage, lost wages); the accident was the cause of my client's damages. While most of this seems like common sense, it seems like the causation element is the one that most mystifies my clients. You can't simply say "I didn't have back pain before the accident and I did have back pain after the accident. Pay me." Instead, you must have a medical expert testify that, that to a reasonable degree of medical probability, the back pain after the accident was caused by the accident. Similarly, you can't just say "The other guy was speeding at the time of the accident and therefore he is at fault." The plaintiff must prove that the violation of the Rules of the Road (or other breach of the duty of care) caused the accident. Simply breaking the law at the time of the accident is not the same as causing the accident. Once Negligence is proven, then what? If a plaintiff can prove the existence of a duty of care, a breach of the duty of care, and causation, the only thing left to prove is damages. Due to how Avvo requires these guides to be structured, I will explain each type of damages in a tort claim under its own header, below. Special Damages (a.k.a. "boardable damages") These are damages upon which we can reasonably put a dollar figure, although we often must hire one or more experts to do so. Special damages include past and future lost wages, lost earning capacity, and past and future medical expenses. In Delaware, any damages that could have been covered by your PIP insurance cannot be included as part of your claim for special damages. General Damages These are damages that cannot easily be valued at a certain amount. They include past and future pain and suffering, past and future loss of enjoyment, permanent physical impairment, disfigurement, humiliation, embarrassment, and loss of consortium. Punitive Damages (a.k.a. "exemplary damages") These are unlike general and special damages. Those damages are theoretically designed to "make the injured party whole," even though money can rarely make up for things like significant pain or permanent impairment. Punitive damages, on the other hand, looks primarily at the at-fault driver's actions and only considers the innocent party's injuries secondarily. They are only available when the at-fault driver was engaged in especially bad, stupid, or evil actions when the innocent party was injured. The purpose of punitive damages is to punish the at-fault driver or to make an example out of him in order to deter other members of society from engaging in similar recklessly dangerous conduct. The only relationship between punitive damages and the actual damages is that punitive damages must have some rational relationship to actual damages. For instance, a jury can't find that a plaintiff suffered $5 in actual damages and then award $500,000 in punitive damages. The US Supreme Court has said that in the vast majority of cases where a jury awards punitive damages, they must be no more than nine times the actual damages. Punitive damages are practically never covered by an at-fault party's insurance policy. This means that, as a practical matter, an injured person can very rarely collect on a claim for punitive damages. However, when there is a valid claim for punitive damages, some insurance companies are more interested in settling the claim in order to protect their insured from a large award of punitive damages. On the other hand, some insurance companies don't care at all about the punitive damages claim because they know they won't be on the hook to pay it. Uninsured and Underinsured Motorist (UM/UIM) Claims Not all claims from auto accidents are technically based on negligence. Sometimes the at-fault driver doesn't have insurance, or he flees the scene and is never identified. In those cases, the injured party might have uninsured motorist coverage under their own insurance policy. Similarly, sometimes the at-fault driver's insurance isn't enough to cover all of the injured party's damages, but the injured party has underinsured motorist coverage under his own policy. (Uninsured and underinsured motorist coverage is not mandatory in Delaware, but it is highly recommended. It is a great value for a relatively low price.) If a person must make such a claim against his own insurer, then the claim is based on the insurance contract, not negligence. Basically the injured party's insurance company "steps into the shoes" of the at-fault party's insurance company. As such, the plaintiff must prove all of the elements of negligence plus that there was a valid UM or UIM insurance policy in effect on the date of the accident and that he qualifies for coverage under that policy. All of the damages available for a straight negligence claim are the same for a claim under UM or UIM coverage, except punitive damages cannot be claimed for the at-fault driver's bad actions. Making your own insurance company pay a punitive award for someone else's bad actions does not punish the at-fault driver for his bad actions nor does it deter other drivers from driving recklessly. Also, the statute of limitations for UM/UIM claims is different than claims for negligence. As a tort for personal injury, a negligence claim in Delaware has a two year statute of limitations, starting from the date of the accident. As a UM/UIM claim in Delaware is based in contract, it has a three year statute of limitations, beginning with the date that your insurance company denies the claim. Evaluating the claim Now you understand the types of damages that can be awarded in a car accident claim. A claim against the at-fault driver is a one time only deal. You can't settle your claim and then come back later for more money later. Once you settle your claim, for all intents and purposes it is gone forever. That means you have to know a lot of information in order to properly evaluate a claim: What is the total past medical treatment? Were there any bills for past medical treatment that were incurred after PIP? Will there be future medical treatment? If so, what will it cost? Is there any permanent physical impairment? If so, how much? How will it affect the person's lifestyle? Can you identify any past and/or future lost wages or lost earning capacity caused by the accident? Is the treating physician able to provide strong testimony that the injuries and treatment were caused by the accident? How likable will a jury find the plaintiff? How many experts will be needed to prove the case to a jury, and how much will they cost? However, by far and away the most important question is: What kinds of awards have local juries given in the past for similar cases? As most of the answers to these questions can't be known until you have either finished treating or you have essentially reached a plateau in recovering, your case can't honestly be evaluated until long after your likely first meet with your attorney. And that's why my honest answer to clients when they meet me and ask what the case is worth is "Nobody knows."