To recover any type of monetary compensation from the negligent party that caused the accident, you must prove that you have actually sustained some form of damages. This is to ensure that you are not profiting or getting a windfall as a result of the accident, as the intention behind restitution is only to place you in as good a position as you were in prior to the accident, not better or worse. Often times, it is challenging to achieve this goal, however, open minded parties that are willing to negotiate can get fairly close to that goal.
As such, you may have guessed by now that damages is an essential element of your case for negligence. This means you must have sustained an actual harm or injury. Unlike the situation for some of the intentional torts such as Assault and Battery, in a negligence action damages will not be presumed. Thus, no nominal damages can be awarded. Some proof of harm must be offered.
Depending on the specific circumstances of your case, you may be able to seek compensation for a variety of damages, including both special and general damages. Special damages are defined as monetary or quantifiable losses that are directly related to your accident and injuries. As a general rule, these types of damages can be calculated and are “sum certain” or specific in nature.
General damages, on the other hand, are very difficult to quantify and are often subjective, which makes them harder to recover and they are never guaranteed.
Special damages are defined as calculable and quantifiable damages, because they are easily proven and calculated when they are properly documented. This is why it is extremely important to keep good records of your expenses and losses associated with the accident. However, special damages still require support to prove they are: (1) reasonably necessary, and (2) reasonable in amount. Blackmon v. Bumgardner, 135 N.C. App. 125, 136 (1999).
The following list delineates most common types of Special Damages that you may be entitled to:
Medical bills (doctor bills, hospital bills, surgery expenses, diagnostic charges, physical therapy, personal care nursing fees, prescription medicines, chiropractor bills, and others), Lost Wages including overtime, Property Damage (both to your vehicle and other items damaged as a result of accident), and All out of pocket expenses.
Medical expenses are, arguably, the most important portion of your personal injury claim in that they not only comprise the biggest portion of your claim, but also because they are a clear indicator of the severity of your injuries. As such, insurance companies primarily examine and scrutinize your medical records to determine the amount of compensation that you are entitled to. Soft tissue injuries can develop days after a car accident thus making it difficult to identify them, as adrenaline has a tendency to mask the pain immediately following the accident. Further complicating the process of identifying soft tissue injuries is the fact that they don’t appear in x-rays. As a result, professional medical attention is critical for diagnosing and treating any pain.
In addition to recovering for medical expenses, you may also recover for lost earnings. Compensation for lost earning capacity is recoverable when such loss is the immediate and necessary consequence of an injury. In other words, you may be able to recover compensation for the loss of income from employment, loss from inability to perform ordinary labor or the reduced capacity to earn money, however, it must be a direct consequence of your injury.
If you are a W-2 employee, the adjuster will generally ask for pay stubs or other proof of compensation in order to determine your average salary information. However, if you are self-employed, it will be more challenging to determine your average salary information. In this case, the adjuster may ask for your tax return for prior year and profit/loss statements.
Lastly, you can also recover the present value of your future lost earnings, typically referred to as lost “earning capacity”. While many courts have addressed the issue of whether a particular claim for lost earnings is too speculative, it is well settled that even though some speculation is inherent in the projection of future earning capacity, you are still entitled to be compensated for them.
While you may have collision coverage on your own policy, which can pay for necessary repairs for your vehicle, you are not obligated to use it in an accident where you were not the at-fault party. Instead, when the accident happens as a result of another’s negligence you have the right to have your vehicle repaired and paid by the at-fault party, or more frequently by his/her insurance company.
Pursuant to North Carolina property damage law, which is comprised of statutes, case law, and NC Insurance Commission regulations (www.ncdoi.com), not only are you entitled to be paid by negligent parties’ insurance company for your motor vehicle’s repairs, but the paying insurance company must also allow you to select a repair body shop of your choice. Though insurance adjusters may suggest a repair facility, you are under no obligation to choose it. In fact, if the adjuster recommends a particular vehicle body shop, they must make a disclaimer that would reasonably inform you that you are under no obligation to use the same repair shop.
However, in order to conduct the necessary repairs in an effective and efficient manner, the insurance company has the right to determine what it would cost to restore your vehicle. As such, insurance company will send out an adjuster to appraise the damage and determine what it will cost to repair it. If you, however, decide to take your vehicle to a premium body shop the labor or parts of which simply cost more than the estimate, then you may be responsible for the difference unless the increase in cost was a result of the shop finding additional damage that was not included in the original estimate.
You may ask, what is a diminished value claim? A lot of our clients do not realize that diminished value claim (DOV) is another avenue to pursue in order to get fully compensated for your losses. After your vehicle was involved in an accident, however minor, it automatically loses its market value. Your car may look and drive the same way, granted it was properly repaired. However, any subsequent buyer that may be interested in your vehicle, can easily run a report on www.carfax.comand discover that it was involved in a collision. Though the vehicle may not have been salvaged, the mere fact that it had some repairs done to it already diminished its value in terms of decreasing the demand for it, as some buyers won’t even consider purchasing a vehicle with prior accident history and others will purchase it at a discount. As such, you end up losing money on your car.
It can be difficult to compute the said decrease in value, and it is subject to negotiation with the adjuster. However, as a general rule, the measure of damages for injury to personal property = Market Value Before the Accident – Market Value After the Accident. While it is easy to determine the Market Value Before the Accident, computing Market Value After the Accident is somewhat speculative, but you can determine it by either finding a few comparable vehicles with prior accident history and taking the average of their values or by having your vehicle professionally appraised at www.carmax.com. As a general rule, you will see you vehicle loose anywhere from 20 to 25% of its pre-accident value.
When your vehicle is damaged as a result of another’s negligence, you are also entitled to compensation for the loss of use of your vehicle in that you were not able to use your vehicle after the date of the accident and until you either get a new one or your vehicle gets repaired. In other words, insurance company of the at-fault party for the day when you were not able to use your car. This compensation can either be in the form of reimbursement for your rental expenses or if you didn’t actually rent a vehicle, then in the form of payment for the loss of use.
This additional obligation obviously impacts insurance companies’ profits, so they will often resort to either not mentioning it at all or refusing it outright if you didn’t actually rent a vehicle. Notwithstanding this blatant ignorance of the law, do not let yourself be taken advantage of, as you are actually entitled to a reasonable rental cost resulting from the loss of use irrespective of whether your rented a vehicle or chose to take a vacation in the Bahamas during that time instead. Generally, insurance companies will pay anywhere between $15 and $30 per day. Thus, you can compute the loss of use by multiplying the number of days it takes to repair your vehicle by the reasonable rental cost of a replacement vehicle.
General damages are derivative of non-monetary aspects of the specific harm suffered, such as emotional and behavioral impairments that must be quantified by assigning a dollar amount. As such, they are somewhat speculative, very difficult to quantify, and are often subjective, which makes them harder to recover and they are never guaranteed. However, the underlying reason behind them is to financially compensate the injured person for other losses (not included in special damages) suffered due to another’s negligent actions.
The following list briefly outlines the most common types of general damages:
Pain and Suffering,Physical Disability,Disfigurement,Permanent ScarsEmotional Trauma,Mental Anguish,Loss of Enjoyment,Loss of Love & Affection,Embarrassment,Mental Disability,Permanent impairment.
Under North Carolina Law, specifically N.C.G.S. §1D-15, Punitive Damages may be awarded only if you can prove that defendant is liable for compensatory damages (Special & General Damages) and if you can also prove by clear and convincing evidence that one of the following aggravating factors was present and was related to the injury for which compensatory damages were originally awarded:
A defendant will not be liable for punitive damages unless he or she participated in the conduct constituting the aggravating factor that gave rise to the punitive damages. Thus, officers, directors, or managers of a corporation will not be required to pay punitive damages unless they participated in or condoned the conduct constituting the aggravating factor that gave rise to the punitive damages. While punitive damages may be recovered in a negligence action, punitive damages may not be recovered in a breach of contract action. N.C. GEN. STAT. § 1D-15(d).
When awarding punitive damages, the jury is required to determine the amount of punitive damages separately from the amount of compensatory damages. Defendant may also move to have the action decided in a bifurcated trial, where the issues of liability and compensatory damages are decided separately from the issues of punitive damages. However, the same jury that tries the issues relating to compensatory damages must try the issues relating to punitive damages.
In North Carolina, legislature has promulgated a cap on the amount of punitive damages a plaintiff can collect. Punitive damages in North Carolina cannot exceed:
Three times the amount of compensatory damages orTwo hundred and fifty thousand dollars ($250,000), whichever is greater.
The jury may not be informed of the statutory cap on punitive damages, nor that the court can grant remittitur or reduction of jury’s punitive damages award. However, if a party who filed a claim for punitive damages has done in a frivolous or malicious manner, it will be required to pay reasonable attorney’s fees.
The factors to be considered by the jury in determining the amount of the punitive damages award, include:
evidence on the reprehensibility of the defendant’s motives and conduct;the likelihood, at the time of the injury, of serious harm;the defendant’s awareness of the probable consequences of its conduct;the duration of the defendant’s conduct;the actual damages suffered by the claimant;any fraudulent concealment by the defendant; the existence and frequency of similar past conduct by the defendant;whether the defendant profited from the conduct; and,the defendant’s ability to pay punitive damages.
This blog is not to be construed as legal advice. We strongly encourage you to seek the advice of a North Carolina Personal Injury Attorney if you incur injuries due to the fault of others who were texting and driving or in all other matters where you incur injuries due to the fault of others. To schedule a consultation today, contact Biazzo & Panchenko Law, PLLC.
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