Insurance Dispute Lawyer Blog
After a recent car accident in Kenner, Louisiana, the plaintiff’s uninsured/underinsured insurance carrier, Progressive, appealed a claim against it, claiming in part that the general damages awarded the plaintiff were excessive. Although Progressive’s claim was dismissed and the award for general damages affirmed, this case brings up the important subject of general damages in personal injury cases.
When filing a claim in a motor vehicle accident, the plaintiff wants to make sure that he or she receives all appropriate damages, and a large component of the damages award typically falls in the category of general damages. So what are general damages and how do you get the appropriate amount of general damages? First, the phrase “general damages” refers to those damages that you can’t easily put a dollar amount on. This is opposed to the other main category of damages, “special damages,” which refers to those damages such as specific medical bills or lost wages that can more easily be determined precisely.
General damages normally encompass areas of loss such as pain and suffering that are inherently subjective. These damages also include compensation for things such as disfigurement and loss of enjoyment of life. One way these damages can be proven is by testifying of things such as limited mobility or the inability to participate in specific activities as a result of the accident. However, while the loss of enjoyment or pain can be testified of, it is often hard to assign a dollar amount to this suffering.
Because the area of general damages is so subjective, many defendants appeal awards of general damages which they deem excessive, just as in the Progressive case referred to above. In the Progressive case, the award of $40,000 in damages was affirmed, however, because the appellate court decided that it was not an excessive award.
In instances like this, the fact finder must look at a preponderance of the evidence when making its judgment, and Progressive argued that the trial court did not do this. The plaintiff had only been to the doctor four times, and Progressive argued that in light of that, $40,000 was excessive. However, as stated above, general damages are not directly tied to any medical bills or any specifically proven dollar amount. Rather, general damages are subjective awards of damage. In this case, the plaintiff had back pain and was limited in the activities that he could pursue after the accident.
Furthermore, the plaintiff in this case was able to receive general damages even though he had previous back problems. Even if you have had previous health problems, that does not preclude an award of general damages. In the case with Progressive, the plaintiff had previous back problems and serious surgery just two years prior. Despite both of these facts, because the plaintiff was able to prove that the accident exacerbated his back problems, he was able to receive general damages. He testified that before the accident he had gone fishing and hunting often, but he was no longer able to fish after the accident.
Even though it is hard to put a specific dollar amount on the damage that comes from the plaintiff’s newly limited activities, the fact finders (the trial court) must make that determination. Once the trial court decides on a dollar amount and passes its judgment, it can only be reversed if the appellate court finds that the trial court’s judgment was clearly wrong or manifestly erroneous or that abuse of discretion was used. In this case, appropriate discretion was used, and the judgment was not blatantly wrong or erroneous. And most importantly, the plaintiff’s attorney made sure to claim all of the requisite damages so that his client could receive the damages he deserved.
If you have been the victim of a personal injury case, contact Berniard Law Firm at (504) 521-6000 so that you can talk to an attorney who will be more than happy to make sure you receive all of the damages you deserve.