How Much Can Car Passenger Claim Pain & Suffering

[ptownbro]

Jurisdiction

California

My girlfriend and her cousin were in a car accident. My girlfriend was driving and has car insurance. Her cousin was the only passenger and does not have health insurance. There were minor to medium injuries to head, neck, and back related to whiplash and jarring from the accident.

My questions related to the cousin. Besides getting her medical bills covered by insurance. Is she able to get a settlement / payment for pain and suffering or similar? If so, how would she do that and how much can she claim? She wants to pursue it (understandably) but does not want to sue my girlfried for too much because they are related. Tricky situation.

 

[adjusterjack]

My girlfriend was driving and has car insurance.

First question should have been obvious.

"My girlfriend was driving...

and a) caused the accident

or b) was hit by another driver who caused the accident."

The answer to that question is critical.

Whiplash suggests that your girlfriend's car was rear-ended but I wouldn't want to assume that without clarification.

 

[Tax Counsel]

She wants to pursue it (understandably) but does not want to sue my girlfried for too much because they are related. Tricky situation.

She would only sue your girlfriend if your girlfriend might have been at fault in the accident. If the other driver was at fault, that's the person she'd sue. So the answer to Jack's question is critical as that determines what options the cousin would have. It also matters how severe the accident was, how badly injured she was, and what the policy limits are for the at fault driver.

And just so we don't end up discussing the wrong state law, the accident did happen in California (the state you tagged your post with), right? If not, we need the state where the wreck occurred.

Pain and suffering claims are very common in car accidents where there was some kind of significant injury. A mere scratch or broken arm isn't going go very far. In my state (which is not CA) negotiations on pain and suffering in settlement talks generally start with a presumption that a jury will award pain and suffering at about three times what the medical bills were.

If she's got injuries more than just something minor like a cut, bruise, or a simple broken arm or leg then she ought to see a personal injury (PI) attorneys. PI attorneys typically give free initial consultations and take cases on a contingency basis, meaning they take as their fee a certain percentage of the award or settlement. In my state typically the contingent fee is 33% taking the case up to and including the trial. It goes up to about 40% if the case ends up going to an appeals court. Since the initial consultations are free, she may want to see at least 2-3 attorneys to get a feel for what he case is worth and to find an attorney she's really comfortable working with.

 

[zddoodah]

My girlfriend and her cousin were in a car accident.

Single-car or multi-car accident? Whom are you being told was at-fault?

My girlfriend was driving and has car insurance.

Driving a car that she owns? What coverages does she have? If there was another car involved and there is an argument that the driver of that other car was at-fault, what coverages does he/she have?

There were minor to medium injuries to head, neck, and back related to whiplash and jarring from the accident.

What is the approximate value of the following:

1. The cousin's medical bills to date resulting from the accident?
2. The cousin's expected future medical bills resulting from the accident?
3. The cousin's lost earnings to date resulting from the accident?
4. The cousin's expected future lost earnings resulting from the accident?

My questions related to the cousin. Besides getting her medical bills covered by insurance. Is she able to get a settlement / payment for pain and suffering or similar?

Depends on the answers to the above questions (and, if you really want to pursue this inquiry, it is important that you answer ALL of the questions).

If so, how would she do that and how much can she claim?

She can claim anything she likes. The "how" is that she makes a demand from the relevant insurer(s).

She wants to pursue it (understandably) but does not want to sue my girlfried for too much because they are related.

If she sues her cousin, is she going to do it in small claims court or in the limited or unlimited division of the superior court (i.e., "regular" court)? If she does it in small claims court, she cannot be represented by an attorney and will be limited to $10k total. If she does it in "regular" court, she should have an attorney and her attorney can advise her about details.

 

[army judge]

My questions related to the cousin. Besides getting her medical bills covered by insurance. Is she able to get a settlement / payment for pain and suffering or similar? If so, how would she do that and how much can she claim?

Personal injury cases
If someone has been injured, they might decide to sue the person they believe is responsible for the injury. There can be different types of injuries, physical, emotional, or psychological. The person who is injured might ask for medical expenses, lost wages as a result of the injury, money to compensate for emotional or psychological injuries, or other losses related to the injury.

There are many types of personal injury cases. In most cases, the injured person (the plaintiff) is suing a person, business, or both (a defendant) because the defendant accidentally or intentionally hurt the plaintiff and caused them an injury of some type. For example, car crashes, slip and falls, or workplace injuries, are all common types of personal injury cases. Workplace injuries will probably involve a workman's compensation case, and it may also be important to pursue the person who caused the workplace injury.

Sometimes, a legal case involves both personal injury and property damage. For example, a car crash might damage your car and hurt you. If that happens, then your case involves property damage and personal injury. Get more information about property damage cases.

Deadline to sue: the statute of limitations
In general, you have to sue someone (file the papers in court) within 2 years from the date of the injury. There are different rules for suing the government with shorter time limits. If you're suing, make sure you're well within the correct time period.

If you're defending yourself, and the person who sued you waited too long, you can ask the judge to dismiss the case.

Who to sue: It's not always easy to know who is responsible for an injury
Generally, a person suing will try to sue everyone responsible for an injury. For example, in a car accident, you may sue the driver who is at fault as well as the owner of the car. If the driver was on the job then the employer could also be sued. Or, in the example of an accident in a store, someone might sue the store owner as well as the company that owns the building the store is in, if they are different.

Sometimes, it's hard to tell who owns a business. A business may be owned by an individual or a corporation. You will need to do research to tell who owns a business so that you sue the right individual or corporation.

Where to sue: Which county should the case be in (venue)
For personal injury cases, you generally have to sue where the injury occurred or where the defendant lives or does business.

Insurance: Check to see if insurance covers injuries and treatment
If you have insurance, talk to your insurance company first and see what they need you to do. It's possible your insurance company will cover all or some of your costs and you don't have to sue, or can sue only for the amount of your deductible or whatever your insurance will not cover.

If you are accused of injuring someone, checking to see if your insurance policy will cover any of the damages might be a good idea for you. Your insurance contract may even require you to report it. It may be that your insurance company pays and you won't get sued.

Causes of action: What are the causes of action and what is the proof
A plaintiff needs at least one cause of action to file a lawsuit. In basic terms, a cause of action is a reason that the law recognizes that allows someone to seek compensation for injuries and harms. This gives the injured person the right to sue in court. For example, a defendant acting in a careless manner and causing injury (negligence) is a cause of action. Intentionally hitting someone and causing injury is a cause of action (battery).

Every part (element) in that cause of action has to be proven by the person bringing the case (the plaintiff). The defendant should also be aware of what the plaintiff needs to prove and how they can defend themselves.

Damages: What damages have you suffered and how much to ask for
Think about what damages you have suffered and are going to ask for. This could be as straightforward as only your medical expenses. But it could be more complicated if you missed work or the damage is ongoing and you don't know the full extent of it, or you may not be able to work in the future. Emotional distress is recognized by the law as requiring compensation even though there is no bill for it and it may be harder to put a money value on.

Proof: What evidence do you have to prove your side
Collect and keep safe evidence proving your position. Examples of evidence include pictures of the accident scene, pictures of vehicle damage or physical injuries, medical bills, doctor's reports, witness statements, and police reports. There are rules of evidence that must be followed to have a court consider your evidence.

Forms you can use
In civil cases, most of the court forms are optional. You can use the optional forms if they work for your case, or you can create your own documents called "pleadings." Forms can be easier to use when they are available because they help you understand what you can or need to include.

For the plaintiff

As a plaintiff, you always need a Summons and a Complaint. The complaint must include at least one cause of action.

You must use the Summons (form SUM-100) and a Civil Case Cover Sheet (form CM-010)
You can use Complaint–Personal Injury, Property Damage, Wrongful Death (form PLD-PI-001) plus at least one case of action or create your own.
There are several causes of action forms you can use if they fit your situation:

Cause of Action–Motor Vehicle (form PLD-PI-001(1))
Cause of Action–General Negligence (form PLD-PI-001(2))
Cause of Action–Intentional Tort (form PLD-PI-001(3))
Cause of Action–Premises Liability (form PLD-PI-001(4))
If you believe the defendant is not only responsible but acted in such a bad way that they should have to pay more money as punishment for their behavior, you can also ask for exemplary damages (damages to make an example of and to punish the defendant). These can be hard to prove. You have to show the defendant is guilty of oppression, fraud, or malice under the law. To ask for exemplary damages, you can use Exemplary Damages Attachment (form PLD-PI-001(6)).

https://selfhelp.courts.ca.gov/civil-lawsuit/personal-injury