Recovering Damages when Injured in a Car Accident

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Personal Injury Claims

Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. The term is most commonly used to refer to a type of lawsuit alleging that the plaintiff’s injury was caused by the negligence of another. If you have been injured in an accident that caused harm to you, such as an automobile accident, it is called personal injury. The most common types of personal injury claims are traffic accidents.

What is negligence?

Negligence is the term used to describe any careless behavior that caused or contributed to an accident. For example, if a driver failed to stop at a red light and hit your car while going through an intersection, that driver is likely negligent. There are many elements you must prove to deem the other person negligent.

  • Duty: Drivers on the road have a duty to all other drivers on the road to drive in a safe manner. As duties arise in many forms, this element is often phrased as a question: “Did the defendant owe a duty to the plaintiff?”
  • Breach of Duty: After defining the duty, it must be determined whether or not the defendant breached the duty in respect to the plaintiff.
  • Cause in Fact: If you can show that but for the defendant’s actions, the plaintiff would not have been injured, then you have satisfied this element.
  • Proximate Cause: This relates to the proximity of the defendant’s actions to the harm at issue in the lawsuit. This element often asks whether the injury can be attributed to the defendant’s actions.
  • Damages: You must be able to prove the damages in order to prevail in your lawsuit. In a personal injury case, damages often include medical bills as well as damages for pain and suffering cause by the injury.

In most situations involving accidents, a cause of action (lawsuit) for negligence is the most common scenario. In general an individual has a duty to act as a reasonable person. When a person does not act in this way and an injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though the other party was also involved in the accident. For example, an individual can be found to have contributed to an individual’s injuries if a driver strikes a pedestrian who is crossing the street without carefully checking traffic. The injured party files a claim against the defendant (the driver), then the defendant can file a claim against the plaintiff (the pedestrian) for contributory negligence. Because the plaintiff failed to check for traffic, they would be partially responsible for the negligence. Comparative negligence examines both parties’ negligence when determining what damages can be recovered. In the above example, when determining damages for both parties, the negligence of the driver and of the pedestrian would be considered.


There are two types of damages one can potentially recover in a lawsuit. The first types is compensatory damages, and the second are punitive damages. It is important to realize that all cases are different, just because there are two types of damages available as remedies, you may not be entitled to both types, or even one type.

  • Compensatory damages cover the injured party’s losses and injuries sustained. Types of compensatory injuries include bodily injuries, physical impairment, disfigurement, physical pain, mental distress and anguish, inconvenience, medical costs, lost wages or earnings, and damage to property.
  • Punitive damages are awarded in cases where the defendant’s behavior was intended. Punitive damages are meant to punish the defendant on top of what compensatory damages already have been ordered.

Compensatory Damages in Personal Injury Cases

Most personal injury damages are classified as compensatory, this means that they are meant to compensate the injured plaintiff for what he or she lost due to the injury or accident. Some compensatory damages are relatively easy to recover, like reimbursement for property damages and medical bills. It’s harder to put a value on something like pain and suffering. There are many types of compensatory damages such as:

  • Medical Treatment: A personal injury damages almost always awards reimbursement of medical care associated with the accident. The award will usually cover outstanding medical bills as well as estimated future medical costs.
  • Income: If the accident had an impact on your income or salary, you may be entitled to compensation. This award covers not only income that you have already lost, but any income that you would have been able to make were it not for the accident.
  • Property Loss: If your vehicle or any other items were damaged as a result of the accident, you will likely be entitled to reimbursement for repairs or compensation for fair market value for what was lost.
  • Pain and Suffering: You may be entitled to receive compensation for pain and serious discomfort you suffered from the accident and the immediate time period thereafter. Also, you may be compensated for any ongoing pain that can be attributed to the accident.
  • Emotional Distress: Awards for emotional distress are usually linked to more serious accidents. Emotional distress damages are meant to compensate the plaintiff for the psychological impact of an injury. This includes fear, anxiety, and sleep loss.
  • Loss of Enjoyment: When injuries sustained in an accident keep you from enjoying day to day activities, like hobbies or exercise, you may be entitled to receive loss of enjoyment damages.

How much will my claim be worth?

All claims are different. Therefore, the value for your claim must be determined individually. Your case’s value can only be determined after medical treatment is complete and all other factors affecting the case are considered. There are other factors that might affect the value of your claim, such as: how seriously you were injured, the type and amount of medical treatment you received, insurance policy limitations, and whether or not you were partially at fault.

Recovering the Damages

Generally, you will not have to deal with the other driver when you are reporting an incident and going through the reimbursement process. Assuming you are not at fault, contact the other person’s insurance company and file a report. If you are unclear about who is at fault, you can file a report with your own insurance company and they will work with the other driver’s insurer to determine fault and compensation. It is easier and much faster to file a claim and receive compensation when the incident was clearly not your fault. However, if the other driver and/or the driver’s insurance company try to dispute your claim, you might have a harder time receiving compensation.

Once your car insurance provider has determined that you are not at fault, the claims adjuster will begin evaluating property damage. Your documentation, along with an inspection of your vehicle, will help the claims adjuster determine compensation for your damages and loss. When you are found not to be at fault, the other person’s insurance provider pays for your medical costs. However, if the other person does not have enough (or any) coverage, or the company refuses to pay, contact an attorney. This is where uninsured motorist coverage is very valuable. Uninsured motorist coverage protects you in the event that you are involved in an accident with an uninsured driver. Uninsured motorist coverage is fault-based, so if you are not at fault, this type of coverage can help you considerably. You may have uninsured motorist coverage even if your policy does not indicate that you are covered. You need to contact an attorney to determine if you are receiving the maximum damage aware possible.

If you have been injured in an accident, you should hire an attorney to help with your case. You will not be required, in most cases, to pay the attorney unless he or she recovers money on your behalf.

If you have any questions regarding the services provided at the Law Office of Gregory W. Fox,
or would like to schedule your free initial consultation, please contact us today at (559) 222-5800. Hablamos español.