In terms of a dollar amount there is no such thing as an average personal injury settlement. Auto accidents differ and “reasonable” settlements depend on the unique facts of each case.
A personal injury settlement takes place when the person being sued (the defendant) agrees to pay the person suing (the plaintiff) money to end the case before it goes to court. Most personal injury cases end with a settlement.
Typically, settlements are determined by comparing the facts of the case with similar cases and by looking at what juries have awarded in the past. Then, unique circumstances of the current case get factored in.
An injured person is entitled to reimbursement from the person responsible for an accident for medical costs, repair expenses, lost wages, and pain and suffering stemming from the accident.
Factors that are beneficial in a settlement include clear liability, clear injuries, no prior injuries or pre-existing conditions, and medical treatment with reasonable costs. Complicating factors include unclear liability or injuries, degenerative or congenital medical conditions, prior injuries, complicated medical issues that were a result of the car accident, and permanent pain caused by the accident.
An insurance company values claims by first looking to the types and amounts of damages suffered and then to percentage of fault. The contribution of each person/driver, if any, to the accident will figure in to the total settlement award. If the plaintiff was partially at fault for the accident, the settlement may be lowered by a percentage that reflects that driver’s responsibility for the accident. If the other driver was completely at fault for the accident and his or her level of responsibility is not in dispute, the settlement will typically be 100% of all damages and any lost income that is negotiated.
New York is a comparative negligence jurisdiction, meaning a plaintiff must prove what percentage of the fault was the defendant’s versus what percentage was the plaintiff’s fault. In most cases, the plaintiff must be less than 50 percent at fault in order to recover damages. Any damage award will be reduced by the percent that the plaintiff is found responsible for his or her own injuries. N.Y. Civil Practice Law and Rules § 1411 codifies the rule on contributory negligence and assumption of the risk.
Out of pocket expenses, meaning money spent or lost as a result of the accident, are often paid by insurance companies without too much conflict. Also typically uncontroversial is lost income from time off from work while dealing with the inconvenience of the accident or while recovering from injuries. However, pain and suffering or emotional distress due to an injury often involve more negotiation.
If a defendant has acted intentionally or very negligently, punitive damages may also be considered. The potential for punitive damages intended to punish a negligent or careless driver can increase the settlement value in a case when handled by an experienced attorney.
Another factor is how strong the plaintiff’s case is thought to be against the defendant. Although potential damages might be high, there needs to be enough evidence that the defendant caused the accident or that the accident was what actually caused the plaintiff’s damages. A large number of factors are taken into accident when determining whether a defendant will or can be found liable.
Once both sides have established their estimate of an acceptable settlement amount, they send settlement offers back and forth. As facts about the cases are collected by both sides, the amount of an acceptable settlement may go higher or lower.
If a defendant does not have a way to pay a settlement, either through personal funds or through an insurance company, then a high settlement will not be possible, regardless of the facts of the case. This must be taken into account when accepting or rejecting a settlement offer.
Keep in mind, victims of car accidents are not typically advised to accept the first offer when negotiating an auto accident settlement. Make sure research is done before an offer is accepted.