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Personal Injury: Are You Entitled To Compensation?

Monday, 10th August 2009

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By: Rex Bush

If you have been injured in an accident you may be wondering if you are entitled to compensation for pain and suffering.

To make a claim for pain and suffering you need: 1) injuries (typically shown by medical bills and records or photographs [such as of a scar]) and, 2) someone else must be “at-fault”. You can’t sue yourself for pain and suffering, even if you accidentally drove off the road.

Fault must be based on a specific theory of “Torts”. Torts is the branch of law that defines wrongful (civil i.e. non-criminal) conduct.

Most personal injury cases are based on one of the following torts: “negligence,” “strict liability” or “intentional act” .

Negligence

Negligence is the most common legal theory on which valid injury claims are based. One reason, of course, is that insurance companies will pay for injuries caused by negligence. Whereas, most insurance policies will not cover intentional acts.

Negligence is made up of four elements: 1) duty; 2) breach of duty; 3) causation; 4) damages (injury).

The “duty” is to act with reasonable care. Duty can be established by statute.

For example, traffic laws require a driver to stop at red lights. Running a red light violates the law and therefore is considered to be a “breach of duty”.

Causation, under injury legal principles, means that the breach of duty caused your injuries. If you already had neck problems, and they were no worse after the accident, then the accident didn’t cause your injuries. However, if the accident “lit up” (i.e. activated) or aggravated your preexisting injuries then the at-fault person (or his insurance company) must compensate you for that.

Insurance companies hire lawyers known as “insurance defense attorneys”. These lawyers are very good at finding prior undisclosed injuries and other weaknesses in your case. They will expend numerous hours and great expense to locate past medical records of claimants.

These records are reviewed by medical doctors who make a lot of money working for insurance companies. Insurance doctors often offer an opinion that 1) the claimant is not injured; or 2) if he is injured, the injuries did not come from the accident.

Strict Liability

“Strict liability” shows up most often in product liability cases–dangerous products. (And, in some states, dog bite cases.)

Strict liability, under injury legal principles, means damages (monetary compensation) can be awarded without negligence (duty and breach of duty.)

Injury law says a manufacturer of a product can be liable if its product has defects in workmanship, parts or other problems which cause the product to be defective when it leaves the manufacturer’s hands.

If the product is defective, then all others in the distribution chain (wholesaler, retailer) are also liable.

Intentional Torts

Intentional torts include e.g. “battery.” Battery is an action which is intended to, and does, cause harmful or offensive contact to another.

Years ago I represented a young woman who was beat up in Provo, Utah. The girl who did the beating suspected my client of going after her boyfriend. (This was probably true, and in the Old West may have justified a beating.)

However, today, in the Modern West, it is against the law to beat up girls who steal your boyfriend. And this was a classic case of the tort of “battery.” The beater intended a harmful contact on my client, carried out that intent and my client had injuries and medical bills to show for it.

We sued and tried this claim in front of a Provo, Utah judge. He found in favor of my client and awarded money.

The problem with intentional torts is that most insurance policies carefully exclude them. So, although my client was awarded money by the court, she never saw a dime. The defendant had no money or other assets.

Conclusion

To recover money for pain and suffering you need to follow the law of Torts. There may be other requirements in the state where you live such as a personal injury threshold for car accidents.

Disclaimer

This article is intended for informational purposes only. For specific advice on your case ask an attorney where you live.

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