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Compensation & Damages FAQ

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A “legal remedy” is the fancy legal term used to describe the remedy – or damages – available at law when someone’s rights have been violated.

 

It is expressed in monetary terms.  Meaning, the injured party is compensated in money. These are the typical remedies available in a personal injury case.

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1)  What are legal remedies/damages?

The three types of legal remedies – or money damages – are broadly described as economic damages (i.e. special damages), noneconomic damages (general damages), and punitive damages.  

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2)  What are the three main types of money damages?

 

Compensatory damages are money damages that are given to an injured party to restore – or compensate – them for what’s been taken away.  

 

They are designed to make the injured party whole again.  

 

The two types of compensatory damages are economic (or special) damages as well as non-economic (or general) damages.  

 

For instance, if a person suffers a leg amputation after a motor vehicle collision, he has suffered an irreparable injury.  Although our civil justice system cannot give the victim a new leg, it can put a money value on his losses to help address his losses.

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3)  What are compensatory damages?

 
 

Economic damages are those injuries that can be objectively quantified based on an injured party’s actual financial losses.  

 

Examples of economic damages include the past and future costs of medical bills, travel expenses, lost wages, lost business or employment opportunities, damaged property, and any other out-of-pocket expenses directly resulting from the at-fault party’s negligence.

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4)  What is an economic (or special) damage?

 

Non-economic damages are those injuries that cannot be easily quantified but are legally recognized injuries.  

 

Examples of non-economic damages can include pain and suffering, mental anguish, emotional distress, physical impairment/disability, disfigurement, loss capacity to labor, loss of consortium, and loss of the enjoyment of life.

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5)  What is a non-economic (or general) damage?

 

Punitive damages are money damages that are used to punish a person for egregious conduct.  

 

These damages also symbolic in that they're used to deter future dangerous conduct.  

 

Punitive damages are an “exemplary” damage, meaning that it is not always available in all cases.  Instead, punitive damages are only available when the underlying conduct is especially egregious, such as being willful, wanton, and done with reckless disregard to the safety of others.

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6)  What are punitive damages?

 

Typically, a personal injury victim can expect to receive compensatory damages (economic and non-economic, including:

  • Medical expense (past and future);

  • Lost wages (past and future);

  • Pain and suffering;

  • Disability (temporary or permanent);

  • Disfigurement;

  • Emotional distress;

  • Loss of enjoyment of life.

In addition, your spouse may be entitled compensation for their loss of consortium as a result of your injuries.

Punitive damages may be available if the conduct is especially egregious.  But, this is rare.

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7)  What types of compensation can a personal injury victim expect?

 

Economic damages are usually calculated by quantifiable proof, such as invoices, receipts, bills, and pay stubs.  

 

For instance, medical expenses are proven by any medical bills or invoices associated with your treatment.   Lost wages are calculated by using pay stubs.  And, property damage to a motor vehicle is based on the repair costs as charged by the mechanic or body shop.

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8)  How are economic damages calculated?

 

Wheale Law Firm is not qualified to give tax advice and we strongly encourage you to consult with an accountant or tax attorney on your specific case.  

 

Generally, we do not expect compensatory damages to be taxable.  That’s because these money damages, in theory, are simply giving back what’s been taken away –  i.e. restoring what you had, but lost.

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9)  Are compensatory damages taxable?

 

Generally, there is no cap on the compensatory damages you may be entitled to recover in Georgia, including economic and non-economic damages.

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10)  Is there a cap on what I can recover?

 

Georgia's apportionment of fault statute states that a jury verdict must consider and divide the fault of all persons or entities who contributed to the injuries.  

For instance, let's say a jury values a plaintiff's injuries at $10,000.  But, they also find that fault is divided three ways -  33.33% on the plaintiff and 33.33% for one defendant and 33.33% for another defendant.  Each defendant is only responsible for paying his apportioned fault, or $3,333.33, and the plaintiff is only entitled to recover $6,666.66 total due to his own responsibility in causing his injuries.

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11)  What is apportionment of fault?

 

Fault can be apportioned to a nonparty, even though they are not represented in the case.

Defense attorneys routinely seek to blame an unrepresented party - or nonparty - for a plaintiff's injuries.  But, lots of times, plaintiffs and their attorneys cannot add these nonparties to a case due to the statute of limitations.

 

For this reason, it's important to hire an attorney about a personal injury sooner rather than later.  This allows the attorney plenty of time to investigate all potential parties to make sure you obtain a full and complete award of damages.

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12)  Can fault be apportioned to a nonparty?

 

You cannot recover for damages for fault that has been apportioned to a nonparty. 

 

That's because the nonparty was not made a represented party to the underlying proceeding. 

In short, the nonparty was not afforded due process - or an opportunity to be heard and defend itself - in the underlying case.  

Any fault apportioned to a nonparty cannot be recovered, and is considered a loss.

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13)  Can I recover damages against a nonparty?

 

Apportionment against nonparties is allowed because it serves the underlying purpose of our civil justice system - i.e. it advances the truth seeking objectives of our justice system. 

 

It also prevent unfair surprise at trial, as all parties should be aware of the potential parties to which fault can be apportioned due to strict notice requirements.

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14)  Why is apportionment against nonparties allowed?

 

A jury is allowed to apportion fault to a nonparty, even if the nonparty is otherwise immune from liability.

So, let's say you were a passenger in a work vehicle being driven by your boss, while on the job.  If the boss's negligence contributes to a motor vehicle collision, fault could be apportioned to him.  But, under the worker's compensation statute, your boss/employer is immune from liability in Georgia's civil courts.  That's because you already have a remedy for his negligence through the workers compensation regulatory scheme.

If you sue the other at-fault driver in Georgia's civil courts, your boss/employer would appear as a nonparty defendant on the verdict form and the jury could apportion fault to your boss/employer.  However, he will not be required to pay any amount of the judgment.

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15)  Can fault be apportioned to a nonparty even if the nonparty is immune from liability?

 

In Georgia, a Plaintiff is not entitled to recover any damages if they are found to be 51% or more at-fault for their injuries.

This is set by Georgia statute, and it embodies traditional concepts of what is known as comparative fault.

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16)  Can I recover damages if I was over 51% at fault?

 

Georgia's apportionment statute does not apply only to negligence cases.  

Instead, it applies to all types of cases, including cases where the at-fault party acted intentionally in causing your injuries, or in strict liability cases where culpability is not required.

It doesn't matter what kind of case you bring, fault can be apportioned between the parties, despite their culpability.

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17)  Does apportionment of fault only apply to negligence cases?

 

A spouse's loss of consortium claim is apportioned in the same amounts as the injured party's underlying claim. 

 

That's because a loss of consortium claim is derivative of of the injured spouse's underlying personal injury claim.  It is not apportioned differently.

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18)  Can apportionment of a loss of consortium claim be different than the injured spouse’s personal injury claim?

 

Compensatory damages are calculated by the enlightened conscious of the jury.  

 

Meaning, just because you have proof of your economic damages, such as medical expenses, the jury is not required to dignify those expenses.  

 

Non-economic damages are especially susceptible to variation, and they are heavily dependent on the circumstances and proof available.  For a minor, temporary injury that has fully healed will likely only merit nominal general damages.  But, catastrophic, permanent injuries will like fetch valuations much larger than just the medical expenses.

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19)  How are compensatory damages calculated?

 

There are multiple factors that can influence the value of your case.

First, we start with valuing your damages, or injuries.  Your injuries are estimated by their economic and non-economic valuation.  Factors that can influence this value include:

  • Type of injury (i.e. temporary or permanent) (traumatic or soft-tissue);

  • Medical bills;

  • Education;

  • Employment & Income;

  • Pre-existing injuries & conditions;

  • Medical history;

  • Disability/impairment rating;

  • Age;

  • Marital status.

Once we have a general understanding of the value of your injuries, we look to the circumstances giving rise to your injuries to understand how responsibility will be divided.  

For instance, if you are the forward-most vehicle in a three-car collision, the two rear-most drivers may both share in responsibility for causing the collision.  In that case, each defendant would be responsible for paying their portion of your injuries.

 

Using a different scenario, if your injury was partially caused by your own negligence, the offending party would not be responsible for paying all of your damages.  Instead, he would only be responsible for paying for what he was responsible for causing.

Next, the value of your case is going to be determined by the availability of insurance.  For instance, most Georgia motorists only carry the bare minimum insurance - $25,000.  If a drunk driver hits you and causes you to lose a leg or limb, you may only be entitled to recover $25,000, even though the objective measure of your "damages" exceeds this amount.

Also, if you don't have health insurance, you will likely be responsible for paying the full costs of your medical expenses.  This can influence your option to settle a case during prelitigation stages or to escalate it to litigation.

Another factor that can influence the value of your case includes any legal defenses the at-fault party may assert.  These defenses often cannot be discovered until the case has been escalated to litigation.

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20)  What factors influence the value of my case?

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