Calculating Pain and Suffering in Texas Truck Accidents
Trucking accidents, especially ones involving passenger vehicles, can leave people with serious injuries and significant pain and suffering. Legally, these types of accidents often fall into a class known as catastrophic injury cases. That has major implications for how you approach a claim and how much compensation you might recover.
Texas is the site of many of America’s worst trucking accidents. Notably, the state has a unique approach to handling catastrophic accidents involving trucks. A truck collision lawyer has to present the case a certain way with supporting evidence. Likewise, there are specific calculations involved in settlements and judgments.
If you’re worried that it might be time to hire a Texas truck accident attorney, you should understand the basics of pursuing a claim within the state’s insurance and legal system. Here is a closer look at what to expect as you move forward with your case.
What Counts as Pain and Suffering?
If you’ve never dealt with the part of the civil legal system that handles injury cases, you might assume that money for your suffering is inherently part of a settlement. This isn’t true.
Most damages in standard accident cases are due to medical costs. The defendant has to make things right by compensating the victim for losses related to medical bills, prescriptions, medical equipment, nursing, and other common forms of treatment.
Pain and suffering are another class of damages. Note that not all cases fit into this class. Generally, you can only make this sort of claim if you can prove catastrophic injuries. A catastrophic injury for legal purposes is one that alters how you will live the rest of your life or at least the next couple of years.
The logic is fairly straightforward. Someone who has lost a hand in a truck accident typically faces a much different post-recovery future than a person who broke their forearm during a slip-and-fall accident on a wet floor. The person with the broken arm is very likely to resume a normal life within a few months. Therefore, their injuries are not legally catastrophic.
Types
Physical
Many physical issues following an accident can change a person’s life. Chronic pain from injuries can make living a normal existence harder. A victim might experience:
- Back pain
- Nerve damage
- Persistent headaches
- Blurred vision
These sorts of damages are different from normal medical claims because the injuries lead to permanent limitations or disability while not being outwardly visible. In extreme cases, a person could require 24-hour in-home nursing for the rest of their life. A pain and suffering attorney will work to show the insurance company or the court that a client’s injuries will effectively cost them for years to come.
Mental and Emotional
The effects of an accident aren’t limited to physical issues. Mental and emotional damages arise from things like:
- Fear of driving
- Stress due to lifestyle changes
- Reactions to physical disfigurement
- Anxiety and depression
- Post-traumatic stress disorder
In most kinds of accident cases, Texas is particularly harsh about claiming mental and emotional damages. However, the state’s legal system has an exception for full bodily damage, and this includes many types of cases that clients might bring to a Texas truck accident lawyer.
Quality of Life
Ultimately, a catastrophic truck accident can massively reduce your quality of life. You may be unable to enjoy life, pursue hobbies, or simply function daily. Married individuals also have the right to pursue compensation for loss of consortium, meaning they can no longer have intimate relations with their spouse.
Average Pain and Suffering Settlement
Quantifying these sorts of damages isn’t a simple task for a truck wreck attorney or the insurance company. To handle this challenge, the law breaks the damages into two large classes: economic and non-economic.
Economic Damages
Economic damages are any claimable losses that come with a specific cost. You may hear a truck wreck lawyer call these special damages, and that refers to the specific nature of the damages. Economic damages cover:
- Hospital bills
- Therapy and rehabilitation costs
- Lost wages
- Property damage
- Medical equipment
- Prescriptions
- Vehicle modifications to accommodate disabilities
Unsurprisingly, this is the part that’s easy to calculate. A truck wreck attorney collects all the bills and presents them to the insurer for compensation.
Non-Economic Damages
Everything that falls under the legal heading of pain and suffering also falls under non-economic damages. In addition, you may also have the right to compensation for visible disfigurement. Generally, the more visible a disfigurement is, the more catastrophic it is for legal purposes. A facial scar, for example, is scored as more damaging than one on the hand.
Methods of Calculating Pain and Suffering in Texas
The important thing to understand is that economic damages affect compensation for non-economic damages. Rather than get into the nuances of quantifying how much a person’s loss of enjoyment is worth, for example, insurance adjusters and lawyers normally use a multiplier. Texas courts have long accepted this arrangement.
Most cases apply a multiplier between 1.5 and 5 times the economic damages. The choice of multiplier depends on how catastrophic the harm to the victim was. Once more, there is a grading difference between a facial scar and one on your hand.
Let’s use round numbers to make the math simple. Suppose a victim suffered $100,000 in economic damages. Depending on the choice of multiplier, the non-economic damages might range between $150,000 and $500,000. This award is on top of the economic damages, so a person awarded $150,000 for pain, suffering, and disfigurement would win a total of $250,000 in compensation. Their truck wreck attorney would then deduct their fee.
Arriving at a Number
Insurers frequently use industry software to generate initial offers. No surprise, the software tends to calculate settlement amounts that fall toward the low end of what a claimant would recover if they obtained a judgment by going to trial. However, insurers seldom want to take a catastrophic trucking case to trial because these are the kinds of judgments that bankrupt companies.
This means that there is typically a negotiation process. Your truck collision lawyer has a duty to present you with any settlement offer from the insurance company. They can then tell you whether they believe it serves your interests to accept it.
Both sides work from industry data that shows settlements and judgments from similar cases. Naturally, the insurance company will tend to say your case is more similar to those that lead to lower payouts. Your truck wreck lawyer will work to show how your case compares realistically to others.
Per Diem, an Alternative
Per diem is a method for calculating damages based on how many days the victim has suffered. It is an alternative method, and it most commonly appears in cases where daily suffering is well-documented and only lasts for at most a couple of years. You will rarely see this calculation in catastrophic tucking accident claims, but it is good to be aware of it in case an insurer tries to pull this card.
Suppose a daily rate of $200 for a person’s suffering. If they suffered for two years, you would multiply 365 days by $200 and two years. The result would be $140,000 in non-economic damages. Once more, this goes on top of the economic damages.
Factors Influencing the Final Amount
The above version is a simplified view of how the math works. The main multiplier calculation only comes after a bunch of other factors. These factors can significantly affect your final compensation amount.
Comparative Negligence
One of the biggest factors is comparative negligence. A party is only liable for the portion of an accident that was their fault. Few things in life are one person’s fault, and the law recognizes this. Note that the subtraction of comparative negligence comes out of the economic damages, before the multiplier applies.
Suppose a trucking company failed to properly maintain the brakes on a rig. At the time of the collision, however, the victim was speeding. Depending on how aggressively the victim was speeding, they might be partially liable for the accident because the speeding reduced the truck driver’s reaction window.
To keep the math simple, assume the speeding driver was 20% liable. This would leave the trucking company 80% liable. With $100,000 in economic damages, the baseline compensation would be $80,000 to reflect the victim’s liability. Further, assume a 2x multiplier for pain, suffering, and disfigurement. The non-economic damages would be $160,000, and the final award would be $240,000.
51% Rule
In Texas and nearly all U.S. states, modified comparative negligence is the standard. This means that a party must be at least 51% liable to owe anything.
Take the example of a speeding motorist hitting a semi. Now, assume the motorist was driving distracted and swerved into the semi. Even if the rig’s brakes were faulty, the distracted speeder almost certainly carries most of the liability for what happened. In Texas, the insurer would award nothing. Likewise, the courts would likely support that settlement if the speeding driver sued.
Injury Severity
Injury severity affects the multiplier. Traumatic brain injuries will lead to greater compensation than a broken arm. Visible disfigurement also drives more compensation. Injuries leading to ongoing treatment demand more compensation, especially if a victim might need care for years or the rest of their life.
Recovery Time
The law also accounts for how long a person might need to reach maximum recovery. This includes factors like:
- Length of hospital stay
- Physical therapy
- In-home nursing
It also accounts for whether the injuries lead to permanent disability. The length of recovery time becomes particularly important in cases using the per diem calculation.
Lifestyle Impact
How the injuries affect your lifestyle also matters. A person who paints regularly as a hobby might claim greater damages for the loss of a finger, for example. Changes to self-esteem, particularly due to alteration of physical appearance, are also factors. The same goes for how the injuries might affect your social life, friendships, and intimate relationships.
Credibility of Evidence
The strength of the evidence in your case is just as important. If an insurer thinks it can refute a specific claim, it is likely to devalue the associated compensation. This is why thorough documentation is so important. A person claiming headaches needs to journal how frequently they occur. Likewise, their truck wreck lawyer will present supporting expert medical evidence of similar cases.
Proving Pain and Suffering
It is hard to show how you’ve suffered. However, the law understands this. Your attorney will assemble as much evidence as possible to show what your injuries are and how they relate to your suffering. Common ways to document such injuries include:
- Tracking suffering in a day planner
- Rating each instance of pain on a ten-point scale
- Comparing your suffering to similar cases
- Presenting video of suffering and pain responses
- Comparing social media posts from before and after the accident
- Testimony from family members, friends, and co-workers about changes
- Listing assistive devices, such as wheelchairs or special eyeglasses
You should also present evidence of ongoing care. This includes documenting regular doctor’s visits and compliance with your physician’s treatment plan. If at all possible, avoid gaps in care because insurers might cite this as proof that you neglected your well-being in ways that they’re not liable for.
Why Representation Matters
A pain and suffering attorney is invaluable because of the complexity of this type of case. The difference between a 2X and a 5X multiplier is huge. It only becomes bigger if a victim is found partially liable.
Insurance companies have software, adjusters, and lawyers on their side. They are in the business of minimizing their risk, and that means keeping payouts down. Representation is valuable when it comes to reading settlement offers, negotiating, and deciding when to take compensation.
Are You Experiencing Pain and Suffering Due to an Accident?
You have the right to work with a pain and suffering lawyer. If you believe you have a trucking accident case that includes pain, suffering, or disfigurement, contact the PM Law Firm right away to discuss pursuing a claim.