Florida law entitles personal injury victims to at least two different types of compensation – economic damages and non-economic damages. Economic damages include compensation for medical expenses, lost work time, childcare expenses, and other easy-to-count losses. Non-economic damages include intangible losses that are not so easy to count. Pain and suffering damages are one form of non-economic damages.
What Are “Pain and Suffering” Damages?
Pain and suffering damages compensate you for the physical and psychological pain that accompanies your injury.
- Physical pain: If you were injured in a truck accident and your ribs hurt every time you exhale, that is physical pain. If you are placed in traction, and the immobility drives you crazy even though it doesn’t hurt, that is physical suffering.
- Mental pain and suffering. If you develop PTSD after a brutal dog attack, that is mental pain. Fear, grief, and depression also count as mental pain and suffering.
Pain and suffering damages often amount to more than half the total value of a personal injury claim.
What Are the Most Common Pain and Suffering Calculation Methods?
The following two calculation methods can yield a pain and suffering claim.
The Per Diem Method
Under the per diem method, you estimate how many days you suffered, and then you multiply that number by a per-day (“per diem”) figure. How much are a day’s pain and suffering worth? It all depends on the specific facts of your case.
The Multiplier Method
Under the multiplier method, you choose a number between 1.5 and 5 (your “multiplier”) and multiply it by the total of your economic damages. The formula looks like this: (Multiplier between 1.5 and 5) X (economic damages) = pain and suffering damages claim. The value of your multiplier depends on the specific facts of your case. The more you suffered, the higher the multiplier.
How Do Defendants Dispute or Limit Pain and Suffering Claims?
Following are some of the most common defenses against pain and suffering claims.
You must prove that the defendant’s negligence actually caused the accident that injured you. One of the ways that insurance companies use the causation requirement as a weapon is to claim that your injury already existed at the time of the accident. This is particularly likely if you are claiming pain and suffering for certain types of suffering, such as back pain. If you can’t prove causation, the value of your claim will drop to zero.
Speculative Claims for Future Pain and Suffering
If your doctor does not expect you to make a full recovery from your injury, you might face a future filled with chronic pain. The problem here is that future damages are inherently speculative. The more speculative they are, the easier it is for the opposing party to question their validity or the amount of your estimate.
You will need an experienced personal injury lawyer to estimate your future pain and suffering. You are also likely to need a medical expert witness. Your expert can prepare a written report for evidence, and they can also testify in court.
Insurance Coverage Limits
Florida requires its drivers to carry $10,000 in PIP insurance, which covers their own personal injury damages but not yours. Likewise, you must carry $10,000 in PIP insurance to cover your own injuries. Although a “serious injury” (as defined by Florida law) will allow you to sue the other driver, Florida drivers are not required to carry any bodily injury liability insurance. The likelihood is high that you will receive nothing in pain and suffering damages for a car accident.
You might fare better in other types of personal injury cases, however. In a dog bite case, for example, the dog owner’s homeowner’s or renter’s insurance will cover your claim up to the limits of the policy. Homeowners’ policies often exclude coverage for certain types of dogs, such as pit bulls. If you suffer a slip-and-fall accident in a commercial establishment, the establishment’s business liability insurance will probably cover your claim.
The Defendant’s Lack of Financial Resources
If the insurance company’s coverage limits are not enough to pay your claim, you might sue the defendant in their personal capacity. If the defendant is a business, they might possess the resources to pay your claim. If they are an individual, they might lack sufficient resources to pay your claim.
Florida will reduce or extinguish the amount of your total damages award – including pain and suffering damages – if you were partially to blame for the accident. If you were 50% or less responsible, a Florida court will subtract that exact percentage from your compensation. If you were 10% at fault, for example, you would lose 10% of your damages. However, if your fault exceeds 50%, you cannot recover anything.
Workers’ Compensation Claims
You cannot claim pain and suffering damages in a Florida workers’ compensation claim. There is a loophole, however, that sometimes allows you to file an ordinary personal injury lawsuit, even for a work-related injury. For this loophole to apply, however, you must find an at-fault defendant who is not your employer – the owner of a construction site, for example.
The Jury Wild Card
Juries are composed of people, and people are complex and unpredictable. There is no way to know for sure what an individual jury will do. Empaneling a jury is like placing a Joker in a deck of cards. Typically, when a jury issues a surprising verdict, it tends to disproportionately favor the victim and not the defendant.
Do You Need a Personal Injury Lawyer?
Yes, you probably do. And yes, you can afford the best law firm, at least if you have a strong claim. Most personal injury lawyers won’t charge you any legal fees unless they win your claim (contingency).
You could try to negotiate a solution on your own, but our skilled personal injury attorneys can probably negotiate a much higher figure than you could, even after accounting for legal fees.