If you are injured in a "tort" claim, you generally have the right to be compensated for your lost wages or lost income due to your inability to work or earn income due to your injury. In other words, if you cannot work due to your injuries, the at-fault party should be responsible to pay your lost income.
Generally, you are entitled to recover your lost income even if you use your sick leave and don't specifically lose any income. This is because you did lose something - the sick time that you would have had otherwise. Each state has its own specific rules about what lost income is recoverable
In Texas, you are entitled to be reimbursed your past wages with a reduction for the federal income taxes you would have paid on such wages. This means that in every case, an expert (usually an economist or a CPA) will be required to testify about your lost income and the taxes you would have paid on the income.
If there is evidence that it is probable that you will lose income in the future due to your injuries or the effects of the injuries, you can also be compensated for the probable future lost income. In this case you would have to have the expert testify to the present value of the lost future income with a reduction again for income taxes that would likely have to be paid on the income. (Generally, you would also want the expert to testify about the effect of inflation on your likely future income. This means that the expert would have to testify about probable future inflation, then discount the probable lost income for its present value and then reduce the income by probable taxes that would have been paid on the income.)
In summary, if you have any significant lost income due to injuries in a tort claim, you will likely need assistance from an experience personal injury lawyer who knows the law and can obtain the proper evidence to prove your lost wages as required by the law.
Wednesday, June 22, 2011
Monday, June 20, 2011
What damages can be awarded to me for a personal injury claim?
If you are injured due to an act of negligence or other tort (torts are violations of standards of care that result in injury, such as an injury caused by someone being negligent, a product defect causing an injury or an intentional act such as an assault), you can be awarded damages for the medical bills incurred to treat your injuries, lost wages or income due to your injuries, compensation for your pain and suffering and mental anguish due to your injuries, compensation for any impairment due to your injuries and compensation for any disfigurement resulting from your injuries.
The first and many times most important element of damages is likely to be compensation to reimburse you or pay for medical bills you incur to treat your injuries. In an auto collision, you may injure your neck or back or suffer an injury or fracture to some other part of your body. The law generally allows you to seek an award of damages to compensate you for the cost of medical treatment for the injuries you incurred in the collision. Technically, you are entitled to be compensated for the "reasonable cost of necessary medical treatment." You are entitled to be reimbursed for the medical bills you incurred prior to any settlement or judgment and also for those medical bills that in "reasonable medical probability" you will incur for treatment of those injuries in the future.
Generally, the past medical bills are easy to determine. Complications in determining the amount of past medical bills necessary to treat your injuries occur when you have a pre-existing condition that was being treated or where your treatment includes unrelated other medical conditions.
Future medical bills are generally harder to establish. In order to prove future medical bills, a qualified medical provider will have to establish the necessity and the probability of the future treatment. Even then, it is not a guarantee since the term probability means that there is some chance that no treatment will be necessary. Generally, future medical bills have to be discounted (or reduced in amount) by the delay into the future in which they will be paid. In other words, if medical expenses are expected to be incurred 20 years from now, an economist will have to calculate and testify about what amount today, held in an interest bearing account, will pay for the medical bills in the future. (The economist should also take into account the effect of inflation on future medical costs and both increase and reduce the future medical expenses to "present value.")
In summary, although it would seem simple to determine the medical expenses that should be awarded to someone injured in a "tort" claim, in only the most insignificant injury claims is that the case. In claims involving significant medical treatment and cost and potential future medical treatment, the determination and proof of such medical bills is the task for an expert in personal injury law.
The first and many times most important element of damages is likely to be compensation to reimburse you or pay for medical bills you incur to treat your injuries. In an auto collision, you may injure your neck or back or suffer an injury or fracture to some other part of your body. The law generally allows you to seek an award of damages to compensate you for the cost of medical treatment for the injuries you incurred in the collision. Technically, you are entitled to be compensated for the "reasonable cost of necessary medical treatment." You are entitled to be reimbursed for the medical bills you incurred prior to any settlement or judgment and also for those medical bills that in "reasonable medical probability" you will incur for treatment of those injuries in the future.
Generally, the past medical bills are easy to determine. Complications in determining the amount of past medical bills necessary to treat your injuries occur when you have a pre-existing condition that was being treated or where your treatment includes unrelated other medical conditions.
Future medical bills are generally harder to establish. In order to prove future medical bills, a qualified medical provider will have to establish the necessity and the probability of the future treatment. Even then, it is not a guarantee since the term probability means that there is some chance that no treatment will be necessary. Generally, future medical bills have to be discounted (or reduced in amount) by the delay into the future in which they will be paid. In other words, if medical expenses are expected to be incurred 20 years from now, an economist will have to calculate and testify about what amount today, held in an interest bearing account, will pay for the medical bills in the future. (The economist should also take into account the effect of inflation on future medical costs and both increase and reduce the future medical expenses to "present value.")
In summary, although it would seem simple to determine the medical expenses that should be awarded to someone injured in a "tort" claim, in only the most insignificant injury claims is that the case. In claims involving significant medical treatment and cost and potential future medical treatment, the determination and proof of such medical bills is the task for an expert in personal injury law.
Tuesday, June 14, 2011
What damages can I be awarded if I am in accident
Many folks wonder what they can obtain as far as compensation when they are in an accident. As usual when it comes to the law, it depends on the specific of the accident.
For example, if you are in an auto collision, you can generally recover damages for the property damage you incur, the medical bills you incur to treat your injuries, the wages or income you lost due to your injuries and compensation for your pain and suffering and mental anguish due to your injuries.
If you are in an auto collision and your vehicle is damaged due the fault of a third person, you are entitled under the law to recover either the repair cost or the market value of the vehicle. The insurer for the at-fault driver gets to decide which one. Generally, if the cost to repair and provide you a replacement vehicle during the reasonable time to repair the damaged vehicle is less than the market value of the damaged vehicle, the insurer will pay for the repairs to the vehicle. All the insurer owes is the cost to repair the vehicle to the condition it was in immediately prior to the collision. So, if there are pre-existing dents or rust, the insurer does not have to pay to repair those areas.
If the insurer decides to "total" the vehicle, the insurer owes the market value of the vehicle. Many times, with low down payments and long term payment schedules, I see vehicle owners who owe more money to the lien holder than the market value of the vehicle. (This is called "being upside down.") Even though the collision was not your fault, the law requires that only the market value be paid and not the amount owing to the lien holder. Finding this out can be quite traumatic on the innocent driver.
There are ways to try to protect yourself from being "upside down." You can make a larger down payment on the vehicle when you purchase it. You can purchase a used car - generally new cars sell at a premium and, when you drive the vehicle off the lot, you lose a substantial amount of market value. Or, you can purchase "gap" insurance when you obtain a loan to pay for the vehicle. "Gap" insurance is a relatively new loan product, and it does exactly what it says - it fills in any "gap" between the market price of the vehicle and amount owed to the lien holder. Someone buying an expensive new vehicle with a small down payment and a long payment schedule, should purchase "gap" insurance - you will be glad if you are in a collision.
If the vehicle is repairable, then by law you are entitled to a replacement vehicle during the reasonable time to repair the vehicle. If the car is "totaled" the law does not provide for a replacement vehicle until you can purchase another vehicle. This seems wrong, but, again, it is the law as determined by the Courts over the last 100 years.
So, in summary, property damage generally is relatively "cut and dried." The vehicle is either totaled or repairable. If totaled you get the actual market value for the vehicle. If the vehicle is repairable, you get the damage done in this specific collision repaired and a replacement vehicle during the reasonable time it takes to repair the vehicle.
Next time we will talk elements of damages for bodily injury claims.
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