One question many people have when considering whether to pursue a personal injury case after a car accident is how much their case is worth. Ultimately, the value of any case, and the injured plaintiff’s monetary recovery, depends on many different factors, such as: (1) the elements of compensable damages like medical bills and pain and suffering, (2) the defendant-driver’s available insurance coverage, and (3) whether the plaintiff has any uninsured or underinsured motorist coverage with his own insurance company.
1. Elements of Compensatory Damages
Persons injured in car accidents are entitled to monetary compensation for things such as medical bills, pain and suffering, disability or loss of normal life, emotional distress, disfigurement, and lost wages.
Medical Bills. An injured plaintiff is entitled to recover the full amount of any medical bills, regardless of whether the injured plaintiff had health insurance that paid all or part of the bills. For example, assume a plaintiff was treated in the emergency room following a car accident and received a total bill of $12,000. Following his treatment, he submitted the bill to his health insurance. His health insurance company then reduced the total bill to only $4,000 through its contact with the hospital, and then paid $3,500 of the bill through under its insurance policy with the plaintiff. The plaintiff then paid the remaining $500 of the bill out of his own pocket. At trial, the plaintiff would be entitled to recover the full $12,000 bill, because the law recognizes that a defendant driver should not receive a benefit based on the fact that the injured plaintiff had health insurance.
Pain and Suffering, Loss of Normal Life, and Emotional Distress. These elements of damages are hard to precisely calculate. There is obviously no easy formula for determine the monetary value of an injured plaintiff’s pain and suffering following an accident. However, when placing on value on these types of damages, one important legal consideration is the nature, extent, and duration of the plaintiff’s injuries.
For example, a person who fractured a bone in an accident and had to have surgery to repair the injury would generally be entitled to more money for pain and suffering than someone injured in an accident who only suffered injuries such as muscle sprains or strains. Similarly, a plaintiff’s whose pain and suffering lasts longer (for example, a person who received nine months of medical treatment following an accident such as physical therapy and appointments with specialist physicians) would be entitled to more compensation than a person who only received limited treatment.
Disfigurement. If a plaintiff suffers disfigurement from a car accident such as scars, they may recover damages for the disfigurement. Again however, there is no easy way to calculate disfigurement damages. Generally, important considerations are the location and visibility of the scars and their size. Another consideration is whether the scars impair the plaintiff’s regular movement and function of their body, such as large scars over joints.
Lost Wages. An injured plaintiff can recover for any wages they lost as result of their injuries from a car accident. This includes if the work that the plaintiff had to miss in order to attend doctors visits and other medical appointments.
Future Damages. An injured plaintiff is also entitled to recover for damages that are reasonably certain to arise in the future. For example, in the case of catastrophic injuries, a plaintiff may introduce evidence that he will need future nursing care and doctors visits, or that he will experience continued loss of normal life due to the permanence of an injury. Catastrophically injured plaintiffs will commonly hire expert life care planners to evaluate their medical conditions and testify at trial about the future medical care that a plaintiff will need.
Punitive Damages. Punitive damages are available in car accident cases if a defendant’s conduct was willful or wanton. Both the Illinois Supreme Court and legislature define willful and wanton conduct as “a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.” For example, driving under the influence of alcohol is willful and wanton conduct that will subject a defendant to punitive damages. See e.g., Ford v. Herman, 316 Ill. App. 3d 726 (5th Dist. 2000).
When punitive damages are available, they are allowed as a warning and example to deter the defendant and others from committing like offenses in the future. When determining the appropriate amount of punitive damages, the judge will instruct the jury to consider three questions: (1) how reprehensible was the nursing home’s conduct, (2) what harm did the home’s conduct cause the resident, and (3) what amount of money is necessary to punish the home and discourage it from committing future wrongful conduct. When weighing the reprehensibility of a nursing home’s conduct, the judge will instruct the jury to consider: (a) the facts and circumstances of the home’s conduct, (b) the financial vulnerability of the resident, (c) the duration of the misconduct, (d) the frequency of the misconduct, (e) whether the harm was physical as opposed to economic, and (f) whether the home tried to conceal the misconduct. The jury may also consider other factors when appropriate on a case-by-case basis.
2. The Defendant-Driver’s Insurance Coverage
If a defendant-driver causes an accident that injures another driver, the defendant’s insurance company will pay any settlement or judgment against its insured driver. However, the defendant’s insurance company is only obligated to pay for a settlement or judgment up to the amount of the limits of the defendant’s insurance policy.
For example, assume that a plaintiff is badly injured in a car accident, and the defendant-driver has a $100,000 bodily injury policy and no excess or umbrella coverage. The case goes to trial, and the jury awards the plaintiff $250,000 in damages. Unfortunately, the defendant’s insurance company will only be legally obligated to pay $100,000 to the injured driver (the limits of the defendant’s policy). The injured plaintiff must then seek to recover the remaining $150,000 from the defendant himself.
Recovering money from an individual defendant can be tough. The first step is filing a citation to discover assets to determine what, if any, assets the defendant possesses. If a defendant does have assets, such as large bank accounts or real property, then the plaintiff can ask the court for an order for turnover, which requires the defendant to transfer his assets to the plaintiff to satisfy the remaining judgment. The plaintiff can also ask the court for leave to garnish the defendant’s wages. However, many times the defendant driver will be insolvent or unemployed, and not have any assets to collect. This means that in many personal injury cases, the primary recovery available to the injured plaintiff will be the limits of the defendant’s insurance policy.
In Illinois, the law requires drivers to have a minimum of $25,000 in bodily injury coverage. See 25 ILCS 5/7-203.
3. Uninsured and Underinsured Motorist Coverage
Uninsured and underinsured motorist coverage (commonly referred to as UM/UIM coverage) can be very valuable in a personal injury case. If an injured plaintiff has a UM/UIM policy of insurance with his own insurance company, he can use it when the defendant’s insurance policy is not large enough to fully compensate him for his injuries. For example, in the hypothetical above, the defendant only had $100,000 in coverage, and the plaintiff obtained a $250,000 judgment. This meant that plaintiff could only recover $100,000 from the defendant’s insurance company, and had to look elsewhere to satisfy the remaining $150,000 of the judgment.
If the plaintiff had a UM/UIM policy with limits of $300,000, he could collect the $150,000 from his own insurer and be made whole. This is why it is very important for Illinois drivers to consider purchasing a UM/UIM policy with their own auto insurer.
Arlo Walsman