Victims of collisions involving semi-trucks often have the right to take legal action seeking compensation from the party at-fault for the crash. In that action, a victim typically seeks two types of damages.
- Economic damages seek to compensate a victim for out-of-pocket costs incurred because of the accident, such as medical treatment, car repair, and lost wages and future earnings.
- Non-economic damages are the costs a victim’s injuries inflict on the victim’s quality of life. One of the most well-known categories of non-economics is called pain and suffering.
Clients of our firm who have suffered injuries in a semi-truck accident caused by a careless truck driver often express some confusion about what constitutes pain and suffering. In this blog post, we aim to clear-up that confusion.
First Step: Identifying Parties With Potential Liability
Before an attorney can begin calculating the damages a client should receive in a semi-truck accident injury case, the attorney may try to identify who has potential legal liability to the client. In a semi-truck accident case in which the truck driver was clearly at fault, there can be multiple parties with potential liability. While getting to the bottom of liability can take some time, every party with potential liability represents a potential source of payment of a client’s damages. As a general rule, the greater the number of potential sources of payment, the higher the probability the client could receive a full measure of pain and suffering damages.
Pain and Suffering Defined
The legal term pain and suffering describes both mental and physical distress caused by being injured in an accident. Some types of pain and suffering may include:
- Injuries that are particularly painful to treat. The treatment for severe burn injuries, for example, often involves the removal of dead or dying skin from the wounded area so that the wound can begin healing. However, the removal of this skin can be excruciating.
- Injuries that result in chronic pain; brain injuries that result in chronic headaches, or spinal injuries that leave a victim with relentless back pain, for example.
- The emotional pain and suffering experienced when one suffers a permanent, debilitating injury that prevents the victim from participating in hobbies and leisure activities, such as hiking or bicycling.
- Emotional pain caused by changes in the injured person’s relationships after suffering an injury. An example would be a spinal cord injury that causes the sufferer’s spouse to become his or her caretaker or prevents the victim from picking up or playing with his or her child.
No person experiences pain in the same way as another, making pain and suffering damages, at times, difficult to calculate and prove. Several factors that commonly figure into assessing the magnitude of pain and suffering include:
- The severity of the injury. Generally, the more severe the injury, the higher the compensation for pain and suffering the victim deserves. After all, suffering a broken arm typically does not produce the lasting physical and emotional devastation that accompany, say, a spinal cord injury.
- How old the victim is. Young people often receive larger pain and suffering awards than older people, likely because of the perception that a life-changing injury affects the victim for a longer period. This isn’t to say that a young person’s pain is worse than an older person’s, of course.
- The degree of suffering. Most injuries are painful; pain is a natural part of being injured. However, the temporary pain of a broken bone will generally (though not always) subside as the bone heals. A traumatic brain injury, however, can result in a cascade of additional physical and mental health issues, change the person’s life entirely, and continue on for many years or even for life.
Common Major Injuries a Semi-Truck Injury Case
The injuries sustained in truck accidents are often catastrophic and inflict significant pain and suffering. These injuries commonly include:
- Traumatic brain injuries. The brain has a limited ability to heal itself, and damage to brain tissue can cause permanent impairments such as altered consciousness, memory loss, seizures, vision or hearing loss, deficits in cognitive skills, lack of balance or coordination, lack of reasoning or judgment, or difficulty in communicating or understanding spoken language.
- Spinal cord injuries. Like brain injuries, the damage from spinal cord injuries is generally permanent and may result in paralysis of the body below the site of the injury. Damage to the cervical spinal cord, located in the neck area, may result in tetraplegia (also known as quadriplegia), or a loss of sensation and function to the arms, legs, torso, pelvis, and even the chest. Damage to the thoracic or lumbar regions of the spinal cord, located in the upper and middle back, may cause paraplegia, or a loss of sensation and function to the legs, feet, hips, and pelvic area.
- Severely broken bones and amputated limbs. The force of a semi-truck accident itself can traumatically amputate a victim’s limb. Victims may also have limbs amputated by doctors after a crash damages the limb so badly that it cannot be saved.
- Internal damage. Internal crush injuries are not uncommon in accidents where a semi-truck truck collides with a passenger car. These injuries may cause internal bleeding and damage to vital organs.
- Burns. A person can sustain serious burns in a truck accident as a result of a fire breaking out after the accident occurs or from caustic chemicals released (usually by the semi-truck) in the crash.
Each of the above injuries meets the definition of a serious injury under Pennsylvania law entitling a victim to seek compensation from the at-fault party in a semi-truck accident. These injuries also frequently demand large damage awards for pain and suffering, provided the victim has experienced legal representation.
Pennsylvania has no caps on the amount of damages a semi-truck accident victim can recover for pain and suffering through a personal injury lawsuit, unless the suit is filed against a governmental agency. Non-economic damages in claims against the Commonwealth are capped at $250,000 and in claims against local governmental agencies, the cap is $500,000.
Plaintiffs can only claim pain and suffering in cases against local governments in the event of a death, a permanent loss of a bodily function, or permanent scarring and disfigurement. Because most truck accident cases involve a driver who works for or is contracted by a non-governmental trucking company, most semi-truck accident injury cases do not fall within this cap.
Pain and Suffering in a Wrongful Death Case
With more than 4,000 people being killed each year in truck accidents in the U.S., there is a lot of pain and suffering associated with this type of accident—both for the deceased before death, as well as the loved ones he or she leaves behind. Pennsylvania law allows for the recovery of pain and suffering damages when there has been a death through two different actions: a wrongful death case and a survival action.
Wrongful Death
A wrongful death action in Pennsylvania must be filed by a representative of the deceased’s estate or by the family members. If a representative does not file a wrongful death claim within six months after the death, any of the family members who are beneficiaries of such action can file the claim. Family members eligible to benefit from a wrongful death claim include:
- The deceased person’s spouse
- The deceased person’s children
- The deceased person’s parents
The damages allowed by this type of claim include:
- Funeral and burial expenses
- Expenses related to the administration of the estate
- Loss of household contribution, including the provision of food, clothing, shelter, healthcare, and education
- Loss of guidance and moral upbringing (available to minor children of the deceased)
- Loss of society, comfort, and services (available to the spouse of the deceased)
- Pain and suffering endured by the family as a result of the death
Wrongful death recoveries are disbursed directly to the beneficiaries and are not subject to taxes.
Survival Action
Often filed in concert with the wrongful death claim, a survival action asserts the legal rights the deceased person had before death, and that the deceased could have asserted had the death not occurred. Survival actions are filed by the deceased’s estate and any recoveries are disbursed to the deceased’s family members.
Among the damages that a deceased person’s representative may recover in a survival action are:
- Medical bills related to the deceased’s final injury
- Loss of future earning capacity
- Pain and suffering endured by the decedent from the moment of his or her final injury until death
The proceeds of a successful survival action claim are disbursed to the deceased’s estate. They are subject to taxes and can also be used to satisfy any outstanding claims of the estate’s creditors.
How Are Pain and Suffering Damages Calculated?
The negative impacts of pain and suffering on an individual’s quality of life have virtually no potential limit. However, attaching a value to pain and suffering does not always seem like a straightforward proposition. Many victims of semi-truck accidents caused by the truck driver struggle to understand how much money they deserve as compensation for pain and suffering.
Insurance companies often roughly calculate pain and suffering damages in one of two ways:
- By taking the total amount of economic damages such as medical bills and lost wages and multiplying it by a number, generally between 1 and 5. More severe and long-lasting injuries will receive a higher multiplier while less severe ones will be multiplied by a lower number.
- By using a per diem method which assigns a cost per day to the injury and multiplying it by the number of days before the injured individual has reached maximum recovery.
These formulas can help to get a sense of what might constitute appropriate pain and suffering damages. However, to arrive at a more definite figure for pain and suffering, an experienced semi-truck accident lawyer will often dig deep into the evidence to identify all of the ways a client’s life has changed because of the pain and suffering. This evidence may include before-and-after pictures and videos, testimony from medical experts, friends, or family members, and the victim’s journals or diaries recording the difficulty inflicted by the accident injuries.
Because of the inherent uncertainty in calculating pain and suffering damages, this item often becomes a sticking point in negotiations between the defendant’s insurance company and the plaintiff’s truck accident injury attorney. It is generally considered reasonable to ask for more compensation for pain and suffering for highly visible scarring (such as scars on the face) or for injuries that result in permanent disability.
Just as pain and suffering can dramatically impact a person’s life, the compensation available for pain and suffering can dramatically impact the total amount of a settlement or an award. This is one of the many reasons it is important to speak with an attorney about your case before agreeing to a quick settlement offer. If you haven’t had the time to completely discern how your injuries or your loss from a truck accident will affect your life, how would the insurance company know?
How Many Truck Accidents Are There?
According to the Insurance Institute for Highway Safety, commercial trucks—when fully loaded—can weigh 20 to 30 times more than an average passenger car. Their massive size and high ground clearance pose a particularly deadly threat to the occupants of passenger vehicles when a collision takes place. In one recent year, 4,136 people died in accidents involving semi-trucks in the United States, with 67 percent of those fatalities comprising drivers and passengers of other vehicles. In the same year, Pennsylvania saw 7,910 accidents involving heavy commercial trucks, resulting in 21 fatalities.
If you were injured in a semi-truck accident that was the truck driver’s fault, or lost a loved one to a truck accident, your best option for pursuing pain and suffering and other compensation is to contact an experienced truck accident injury attorney.