Someone seriously hurt in a New York car crash caused by the negligence of another may be entitled to compensation for pain and suffering.
This concept of “compensatory damages”— requiring the person who caused the harm to pay for it—seems fair.
The person idling at the stop sign did nothing wrong; she was just in the wrong place at the wrong time when the rear-ending motorist carelessly looked down at his phone. That rear-ending motorist, and/or the insurance company he paid premiums to, should pay for resulting damages.
Money is expressed in different quantities, but some damages may be difficult to quantify. Pain and suffering and loss of enjoyment of life are less concrete than economic losses such as lost wages, which can be neatly calculated on an Excel spreadsheet. Anyone can multiply a weekly wage by the number of weeks missed from work. That is basic arithmetic.
But what if that same person, once they return to work, cannot play pickup basketball in the driveway? Knead the dough used to bake the family’s favorite homemade bread? Sit upright on the couch while watching the customary Saturday night movie?
What is the monetary “value” of those experiences, or lack thereof?
These are reasonable questions to ask after a serious New York crash. Most injured motorists must show a serious injury to recover money damages for pain and suffering. This sort of recovery is “noneconomic” because it does not pertain to lost wages or medical expenses but is instead a remedy which seeks to substitute a dollar figure for human experience.
In New York, unlike most other jurisdictions, it is not always enough to show that you experienced some discomfort or inconvenience because of injuries. To recover damages for pain and suffering, in most cases you must also demonstrate that your injuries are “serious” as defined by lawmakers nearly a half-century ago:
Most injured New Yorkers who qualify under this serious injury threshold do so under the last three categories. These are often known as the “soft tissue” categories because they recognize compensation for people with herniated or bulging discs or other spine injuries.
Why a serious injury threshold? The New York insurance law generally provides that certain lost wages and medical expenses must be paid regardless of fault. That is the compromise: Prompt payment of certain limited economic damages in exchange for a limited right to sue for noneconomic damages like pain and suffering.
This may seem somewhat confusing, but an experienced New York attorney can examine the circumstances of your case and explain how you might “pierce” the serious injury threshold and, once the threshold is crossed, achieve maximum recovery for pain and suffering.
The law provides certain guideposts courts might consider when determining a fair and reasonable amount of compensation for pain and suffering. The bottom line is that some degree of conscious awareness is required. The injured person must know that they are missing out on the pleasures and pursuits of life. This may include evidence that the injured person had trouble sleeping or struggled to enjoy time spent with loved ones.
A settlement for pain and suffering is, as the name implies, a compromise. The injured person agrees to resolve the claim for pain and suffering in exchange for payment of a definite amount.
The proposed settlement amount must fully compensate for past and future pain and suffering. Once a case is closed, it cannot generally be revived. A fair settlement amount will account for the injured person’s pain and suffering going forward as well as the risk of rejecting the settlement offer and taking the case all the way to trial.
Because a personal injury settlement must account for past pain and suffering, it is often difficult for a New York attorney to answer the question “What is a realistic settlement amount” without monitoring treatment, diagnosis, and prognosis and, ultimately, determining what is known as “maximum medical improvement.” This takes time. Also relevant is the amount of available insurance coverage and whether any at-fault parties have assets that could satisfy a judgment.
It is generally a good idea to consult an experienced attorney soon after a crash to begin the process as soon as possible. An experienced attorney can monitor the case and advocate on your behalf early on so that the insurance company sets an adequate “reserve” for your claim. Sensitive time deadlines loom. Some cases, including those against municipalities like cities and towns, require service of a Notice of Claim very soon after the crash. Failure to meet these time deadlines could mean dismissal of the case, and an experienced attorney can help you meet them.
The experienced attorneys at William Mattar, P.C. would be honored to review your case and help you achieve maximum recovery for pain and suffering. Please do not hesitate to contact us anytime.