How Damages Are Established

San Jose Personal Injury Attorney Discusses How Damages Are Established

San Jose Personal Injury Attorney San Jose personal injury attorney Costanzo Law Firm understands that lawsuits can be very complicated. While some personal injury claims are obvious, others can be difficult in terms of both establishing negligence against the respondent and then determining the actual financial value of the damages the victim incurred. Some damages can be easily quantified in discreet dollar amounts regarding medical bills and property damage, even though insurance coverage providers regularly contest award potential for both components of a case, but other damages can often be very unique to the particular injury claim. Lost wages are also recoverable as damages, and the formula for calculating these award levels can be very argumentative. Insurance adjusters are thoroughly trained to function as professional financial damage negotiators. However, all attorneys at San Jose personal injury lawyer Costanzo Law Firm are also trained in recognizing when an insurance provider is using bad faith tactics or purposely delaying the claim settlement in hopes of getting the injured claimant to accept an unfair low settlement offer. This potential situation is why it is crucial to have a legal negotiations professional representing your case when determining a fair and equitable settlement that makes the injured claimant whole in financial award recovery.

Establishing Negligence and Fault

The first component of establishing damages is for your San Jose personal injury attorney to present a crafted argument to the court that proves the respondent is responsible for the injury. Winning a personal injury lawsuit requires your San Jose personal injury attorney to prove that an accident occurred that resulted in the claimant’s personal injury, and further prove that the accident was due to the respondent’s negligence in exercising a reasonable duty of care regarding the personal safety of the plaintiff. If the negligent respondent has an insurance provider, that insurance company will also be allowed to argue the claim as well, so there is often more than one entity involved in the assessment of validity and financial value of a personal injury claim. This always complicates a case, and when multiple negligent parties are involved, the damage determination can be exacerbated again. Your San Jose personal injury lawyer will always be prepared for this multiple respondent predicament.

Determining Damages After Establishing Injury Responsibility

Once all parties officially recognize disregard to a reasonable duty of care by the claim respondent, the next step in the process is beginning payment of compensatory damage case components. There are two general types of damages. Those types are compensatory and punitive, termed as exemplary damages in some states, and the amounts of both can be debated when determining the value of long-term coverage for the injured plaintiff. Your San Jose personal injury lawyer realizes that some damages can be easily quantified, such as medical bills and property damage associated with the accident, but other damages such as lost wages recovery can be a real contentious issue when arriving at a fair settlement amount. Insurance adjusters are diligent in pursuing a release from further medical bill coverage for the plaintiff, and your San Jose personal injury attorney from Costanzo Law Firm can use this request from the defendant as leverage for increasing the amount of your claims arising from the injury regarding impact on your quality of life. This is where the severity of the injury and the resulting long-term physical outcome becomes very important when determining actual dollar damages.

Determining Economic Compensatory Damages

Economic compensatory damages are almost always settled first. These are issues such as medical bills, property damage, expenses commuting to medical treatment facilities, and potential replacement vehicle rentals. The value of these damages will be included in the amount of insurance coverage the respondent carries according to the caps on both personal injury and property damage. Where the legal claims get intense in when the parties are negotiating lost wages and long-term prognosis for employment. While some injuries can result in the injured victim being able to work, but not being capable of working in their prior employment position, the next determination issue can involve the level of disability. Insurance companies will attempt to classify an injury as a “partial” disability, but the government only considers total disability. Lost wages are economic compensatory damages, and calculations can include much more than just lost income for the time of inability to work. If the injured victim was employed in a labor-intensive employment field, such as construction, merely covering these lost wages while incapacitated is not sufficient. The potential difference in pay level associated with a sedentary occupation can also be recovered. Your San Jose personal injury lawyer at Costanzo Law Firm will expect this additional claim for damages to be defended vigorously and will use every factor supporting the claim in negotiations, such as the age of the injured plaintiff.

Determining Non-economic Compensatory Damages

Compensatory damages are classified in two categories. The non-economic component of damage determination is usually centered on pain-and-suffering and loss of quality of life, including loss of consortium. Loss of consortium legal standing is usually applied to the family and spouse of the injured victim, but the primary plaintiff can also claim a loss of consortium when serious or paralytic injury results are included in the claim. This determination is also an injury prognosis variable that can be argued strongly by the respondent parties, but the potential for continuing medical coverage for the injuries is often enough settlement amount concern for the negligent party that your Costanzo Law Firm representative can use this to settle the case for the cap with respondent insurance providers.

Determining Punitive Damages

Punitive damages are different from compensatory damages. They are not intended to provide financial award recovery for the plaintiff, even though they will be the recipient of the award in most cases. Courts do not have the power to assign punitive damages unless the injury case has gone to a full jury trial, including both criminal and civil. The outcome of a criminal case can impact the settlement of the civil case when the accident was egregious and the result of gross negligence by the actions of the accused party. Punitive damages are determined by the jury in the trial, and states also have the power to adjust those punitive damages according to state law. Some states will only allow treble damages, which are determined normally by combining all compensatory damages and applying a multiplication factor of three. Having an experienced and effective attorney means that the willingness to take a very serious claim to trial can be used in arriving at a maximum compensatory settlement to avoid a jury assessment. Punitive damages can also be awarded when your legal counsel can prove the responsible insurance company used bad faith tactics during the settlement negotiation, but this is usually a separate legal issue.

Contributory and Comparative Negligence Damage Adjustments

Many times the percentage of fault assigned to a plaintiff in states using these settlement reduction tactics can reduce the value of damages regarding an accident injury. However, claims against defective product manufacturers may not include this defense because manufacturers are held to strict liability standards, which means your attorney need not prove negligence in the claim. These are also separate legal cases, but can enhance the damage determination greatly with cases including multiple respondents, regardless of comparative negligence percentages.

Contact a San Jose Personal Injury Attorney

Anyone in California who has suffered a personal injury should contact the legal professionals at Costanzo Law Firm at (408) 993-8493 and let them evaluate the facts of your case for free and provide an in-depth assessment for the damage recovery potential of your claim.


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