When searching for a personal injury attorney, it’s likely that they will all promise full compensation. However, receiving full compensation for a personal injury case does not happen very often. In fact, it is nearly a myth!
Although the goal of civil litigation is to place the injured person or party back into the financial situation they were in before their injuries, insurance companies will do everything they can to avoid responsibility and pay back damages. This includes using different tactics to talk the injured person into accepting an early settlement or dropping the claim entirely.
So, what happens to the injured party? Even in cases where the injured person goes to trial and wins, there is a chance that the verdict gets appealed, returns to trial, and so on. This can result in a lifetime of pain and suffering without the well-deserved compensation.
The litigation process is long and daunting, and it makes sense that most individuals are worried about the time and money that goes into pursuing a personal injury claim. The best way to ensure that the injured party’s rights are protected is to work with an experienced personal injury attorney.
This page will break down the compensation legally entitled to the injured party, along with the different challenges the plaintiff may face during a personal injury case.
What Compensation Are You Legally Entitled to Recover from a Personal Injury Case?
After an individual is injured in an accident and seeks to file a personal injury claim, ‘damages’ is considered the sum of financial recovery the injured party is entitled to. In civil proceedings, personal injury damages are governed by the law of torts.
Tort law refers to the plaintiff’s restored financial position to where they were prior to their injuries. Tort reform refers to the changes to the law to make it more difficult for the injured person to sue, or to reduce the potential compensation awarded to the injured person after their personal injury claim has won.
Under Ky. Rev. Statute Section 65.200, “action in tort” is defined as the claim for financial damages based upon negligence, medical malpractice, intentional tort, nuisance, products liability and strict liability, along with claims of wrongful death.
In a Kentucky personal injury case, the injured party’s damages can be broken down into three different categories: economic damages, non-economic damages, and punitive damages.
Economic damages refer to the specific financial loss the injured party has experienced as a direct result of their injuries. This can include past, present, or future financial losses. Economic damages include the following:
- Medical bills
- Lost wages
- Lost earning capacity
- Property damage
Non-economic damages refer to the intangible losses caused by the injuries. Non-economic damages are more difficult to calculate, as it refers to a loss that does not have a specific financial value attached to it. Non-economic damages include the following:
- Pain and suffering
- Emotional distress
- Diminished quality of life
- Loss companionship or consortium
Punitive damages is defined under Kentucky Statute Section 411.184 as the exemplary and means damages that are awarded to the injured party to punish and discourage the at-fault party from conducting similar, negligent conduct in the future. Punitive damages are extended beyond the typical personal injury compensation and is meant to punish the at-fault party when their actions are found to be egregious, intentional, or reckless. Examples of cases which may be eligible for punitive compensation include the following:
- Gross Negligence – The at-fault party’s actions showed a clear conscious disregard for the safety of others, which resulted in serious injury or death. An example includes a truck driver who knowingly violated traffic or safety regulations which resulted in an accident with serious injury or death.
- Deceit or fraud – The at-fault party intentionally concealed or misrepresented information which led to personal injury. An example includes a truck manufacturer who failed to disclose defected products, which resulted in an accident with serious injury or death.
- Intentional tort – The at-fault party’s behavior was found to be malicious or intentional. Examples include personal injury cases involving an intentional motor vehicle, bicycle, or pedestrian collision.
- Drunk Driving – The at-fault party was operating a vehicle while under the influence of alcohol, chemical substances, or controlled substances to the point of impaired faculties. An example includes a driver of a motor vehicle or truck colliding with another motor vehicle, bicycle, or pedestrian while under the influence, which resulted in an accident with serious injury or death.
Even if the injured party has provided proof of all three types of damages in relation to their injuries, it does not mean that they will receive compensation for everything. The big question remains: what portion of the injured party’s damages, if any, will be legally recovered?
How Insurance Companies Avoid the Rules
There are different tactics the insurance companies will attempt to use after a personal injury claim is filed to avoid paying the full value of an insurance claim. Some tactics commonly used by insurance companies include:
- Denial of liability – Insurance companies may attempt to dispute a personal injury claim or deny liability by claiming the policyholder is not at fault for the injuries. Shifting blame can result in reduced or limited compensation.
- Delaying claims process – It is not uncommon for insurance companies to delay the personal injury claims process by requesting excessive documentation, conduct extensive investigations, or using other means to slow down or prevent the claim or prolong the negotiation and settlement process.
- Underestimating damages – Insurance companies may attempt to challenge the severity of the injured person’s injuries, damages, and their impact on the plaintiff’s life, or dispute the need for continuous or future medical treatment.
- Offering quick settlements – An insurance company may try and settle the case quickly by offering an initial settlement. The injured person should be wary of these settlements, as the offer may be too low to help cover the true value of the damages.
- Investigation and surveillance – It’s possible that the insurance company will investigate or conduct surveillance of the injured person. This may include viewing social media or hiring a private investigator. The goal here is for the insurance company to challenge the validity or extent of the plaintiff’s injuries.
- Pressure to settle – Insurance companies will try and pressure the plaintiff into accepting a settlement, often much lower than the valued damages. Tactics to pressure the plaintiff include using time constraints, manipulation, or threats of an extensive legal battle.
What if Your Insurance Coverage is Limited?
There are instances where there just is not enough insurance coverage to adequately compensate the plaintiff for their damages and injuries. Even if the liability has been placed upon the at-fault party and the insurance company agrees to pay, the “full compensation” may not be enough.
This is most common in cases where the at-fault party has little to no insurance coverage. An example includes a person in a motorcycle collision in Kentucky that results in injuries amounting to $1,000,000 in medical expenses. The at-fault party has no insurance and no assets, but the injured party had $50,000 in uninsured motorist coverage on their own insurance plan. The insurance company may agree to pay the full $50,000 policy; however, it does little help to the surmounting medical bills.
Damages Caps and Statute of Limitations
The State of Kentucky currently does not have a cap on damages in a personal injury claim. That means there is no state-imposed limit on how much compensation the injured party can be awarded.
However, something that can impact a personal injury claim is the Statute of Limitations. Kentucky has several statutes of limitations in place for filing a personal injury claim.
Kentucky Statute Section 413.140 states that an action for an injury to the person or plaintiff is one year from the cause of action occurred.
Kentucky Statute Section 413.125 states that an action for an injury involving a motor vehicle is two years from the date of the accident or date of the the last PIP payment.
While both statutes provide a lengthy amount of time, the worst thing the injured party can do is wait to file or get a professional involved. This can cause serious issues such as losing evidence, witness statements, failing to seek timely treatment, or other important information to the claim. Attempting to file after the statute of limitations will result in the injured party’s case getting barred and will prevent them from receiving any compensation.
The at-fault party and insurance company will be hoping the injured party fails to file within a timely manner. However, hiring a personal injury attorney will help by gathering all evidence and filing quickly, so you don’t miss out on the compensation you deserve.
What is a Remittitur Order?
A remittitur order is when a judge reduces the amount of compensation awarded to the injured party by a jury. In this instance, the personal injury case has gone to the courtroom and in front of a 12-person jury.
The process for a remittitur order includes:
- Jury providing the verdict and awarding the specific damages to the injured party based on all evidence;
- After the verdict is announced, either the at-fault person or insurance company may file a motion for remittitur to request the judge reduces the amount of damages awarded by the jury, with the claim that the award is excessive or not supported by evidence;
- The judge must review the motion, consider all case evidence and party’s arguments, and determine if the severity of injuries and damages amount to the jury’s verdict;
- Based on the judge’s review, he or she will either accept or deny the motion. If granted, the judge will issue a remittitur order to reduce the value of damages to an amount the judge deems acceptable. The defendant has the option to accept the reduced damages or reject it and proceed to a new trial; and
- If the plaintiff rejects the offer and the case goes to a new trial, a new jury will be selected to evaluate the case and its evidence to determine the newly awarded damages.
It is important to note that the decision to grant or deny a motion for remittitur falls within the judge’s discretion. It is the judge’s responsibility to evaluate the circumstances and evidence to ensure the resolution is both fair and reasonable.
What is a High-Low Agreement?
A high-low agreement is defined in Knoebel v. McKay as a settlement in which a defendant agrees to pay the injured party a minimum recovery in return for the plaintiff’s agreement to accept a maximum amount regardless of the outcome of the trial. High-low settlements are considered a risk-management tool to establish a predetermined range of recovery for the injured person.
High-low agreements are meant to provide both parties with a certain level of protection. The injured party will be guaranteed some amount of compensation, even if the jury verdict is a lower amount than expected. The at-fault party or insurance company’s potential liability will be limited by capping the maximum amount they may be required to pay.
Although high-low agreements can be beneficial, they have the potential to limit the compensation the injured party deserves. High-low agreements often act as more of a recognition of the available insurance coverage and the desire of the injured party to avoid a lengthy appeals process.
It is always best to first consult with a Kentucky personal injury attorney to understand the implications of and potential consequences of entering into a high-low agreement.
What if the Awarded Compensation Exceeds the Insurance Policy’s Limit?
There are some instances where the injured party has won the personal injury case, but the verdict exceeds the policy limit provided by the insurance company. In these instances, the insurance company should be required to pay the full verdict, however it is becoming more difficult to ensure the compensation is paid.
For example, let’s say the injured party has $1,000,000 in medical bills from their injury. The insurance company refused to pay the one million, and the case was taken to court. The jury verdict awarded the injured party with $2.5 million instead, which is an even higher amount. However, the at-fault party filed a declaratory action to deny their responsibility of paying the full awarded amount. If a judge then agrees with the declaratory action, the case will be appealed and returned to negotiations or trial.
Extending or prolonging the settlement may make the injured person wary of continuing the litigation process. However, an experienced personal injury attorney in Kentucky can provide non-stop support and help the injured person receive the compensated damages they deserve.
Contact a Kentucky Personal Injury Attorney
After an accident in Kentucky, the injured party and their family may feel intimidated by the legal system if they choose to file a personal injury claim. This is especially true when it is hard to determine the exact compensation an injured party will receive. With the ongoing tactics by insurance companies, the injured party may be discouraged from fully pursuing the claim.
However, hiring a personal injury attorney can help guarantee that you have someone knowledgeable in Kentucky law fighting in your corner. It is always important for attorneys to be transparent about the financial landscape of civil proceedings and what to expect going into a personal injury case.
The attorneys at Morrin Law Firm pride ourselves on being honest and straightforward with our clients. We provide a risk-free evaluation to determine whether your case is worth pursuing further. Contact our office today at (859) 358-0300 to consult with one of our attorneys.