Under Michigan law, you can sue the driver that caused the accident for pain and suffering compensation as well as other non-economic damages.
This is called a negligence claim or in Michigan, a third-party claim. In a Michigan negligence lawsuit, you are seeking compensation because of the negligence, or fault, of another driver or vehicle owner.
What are pain and suffering damages?
Pain and suffering refers to claims made as a result of mental or physical distress undergone by the plaintiff. They can be considered compensatory damages that have nothing to do with economic losses.
- Bodily aches and pains caused by the accident
- Grief as a result of the death of a loved one
- Limitations on activities/enjoyments, both temporary and permanently
- Emotional trauma or depression
Pain and suffering can be split into two components: physical and emotional. Physical pain is more than just pain and discomfort from the actual injuries. It encompasses any pain the plaintiff is likely to endure in the future as a result of the accident. In minor cases it is compensation for discomfort. In severe cases, it is compensation for extreme suffering.
Mental pain looks at what the plaintiff suffers through on an emotional level. It includes things like distress, shock, anxiety, grief, loss of enjoyment of life, loss of love life, and emotional trauma. It also takes into account physical manifestations of the emotional damages, such as depression, insomnia, loss of appetite, and symptoms of PTSD. Like physical pain, this also considers not just past sufferings, but the emotional toll expected to continue into the future.
Symptoms of emotional distress
- Loss of consortium
- Strain on relationships
From Whom Can I Get Pain and Suffering Compensation?
Typically, you can get pain and suffering compensation from either the car insurance company for the driver that caused the accident, or even the owner of the vehicle under the Michigan Owner’s Liability Statute. However, you must prove the other driver was at least 50% at fault for causing the accident.
How Injured Must I Be To Receive Pain and Suffering?
To receive pain and suffering compensation under Michigan law, you must have sustained what’s called a “threshold injury.” The three categories for threshold injury in Michigan are (1) death, (2) permanent serious disfigurement, and (3) serious impairment of body function.
Most Michigan car accident and Michigan truck accident cases involve the last category – serious impairment of body function. The meaning of this phrase has changed numerous times over the years, but the currently accepted definition says a Michigan car accident victim or Michigan truck accident victim must show an objectively manifested impairment of an important body function that affects his or her ability to lead a normal life.
How do I prove pain and suffering?
Since pain and suffering, both physical and emotional, is so subjective, it is sometimes hard to present tangible proof that can go such a long way in helping win the claim. Documentation is important: being able to show how the mindset and personal life of the plaintiff has been affected by the accident will go a long way.
Be sure to mention any pain or discomfort you are experiencing. When a doctor makes a note of it and it becomes part of your medical records, insurance companies will not be able to refute it later. Also, the word of a mental health professional (or even just proof of treatment) can be useful in proving the less apparent mental scarring.
Be open and heartfelt. Get personal and don’t hold back. The insurance adjusters need to know how hard it has been on you and that you deserve compensation for all your injuries, not just the physical ones.
What documentation do I need to prove pain and suffering?
You must provide the insurance company proof to validate your personal injury claim. Here are some of the main ones you should gather:
- Photos of the accident and your subsequent injuries
- Medical reports
- Any medical bills and receipts
- Lists and receipts for prescriptions/medications
- Proof of lost wages
- Log of treatment undergone, both physical and psychological
- Journal or pain log
- List of missed activities/hobbies/etc.
- Written evaluations from your therapist or mental help professional
At the very least, you should keep records of medical records, medical bills, photographs of injuries, prescription records, over-the counter drug receipts, and employer verification of lost work time. The documentation you provide for your pain and suffering claim can be difference between winning a full award or just a fraction of it.
What kind of compensation should I expect for my pain and suffering claim?
Pain and suffering is difficult to quantify because it so subjective. It cannot be tied to a dollar figure like lost wages and medical bills – rather it relates to the person’s experiences. Here are some factors the court will look at:
- What kind of injury
- Pain level – both longevity of injury and how bad the pain is
- What kind of medical treatment and if it will need ongoing care in the future, such as therapy, medications, surgery, etc.
- How the injuries sustained affect your life (work, personal, relationships, etc.)
- Evidence that can support plaintiff’s claims
- Consideration of pre-existing conditions
How does an insurance company calculate pain and suffering damages?
There are no set rules that determine what your pain and suffering settlement will be. The two most common methods are the 1) Multiplier Method, and 2) Per Diem Method.
The Multiplier Method
This method combines the plaintiff’s damages for medical bills and lost wages then simply multiplies by a number, typically between 1.5 and 5. For example, say the total of medical bills and lost wages for an accident victim are $5,000. She may multiply that by two and determine that $10,000 is an appropriate pain and suffering settlement. The multiplier often correlates with how severe the injuries are.
In the multiplier method, the multiplier will generally range from 1.5 to 5. Factors that affect this number include:
- Severity of your injuries
- Likelihood of a quick and full recovery
- How big of an impact your injuries have on your day-to-day activities
- Whether or not the other party was clearly at fault
Soft tissue injuries usually result in a 1-2x multiplier. Soft tissue injuries consist of bruises, cuts, sprains, and other minor injuries. Hard injuries are more severe, like broken bones and ruptured disks. These multiples can be from 2-3x. More serious injuries, such as permanent scars, brain damage, spine and neck injuries, will run a higher multiple as the have a more severe long term effect.
The Per Diem Method
This method looks at the daily cost until maximum recovery is reached. For example, a plaintiff has a per diem of $100 and maximum recovery is determined to be reached in 4 months (120 days), the total pain and suffering amount is $100×120= $12,000.
In the per diem method, the most difficult part is justifying the daily rate. One way to pick out a daily rate is to make it your daily earnings. The contention would be that dealing with the pain from your injuries is proportionate to the energy expended in going to work every day.
This is easy to calculate. Say you get into an accident that results in inhibitive pain for the next four months (120 days). To get your per diem, just divide your annual salary by number of working days in a year (usually 250). If you make $55,000 per year, the per diem comes out to $220. Multiply by 120 days for a total settlement of $26,400. If you are hourly, the calculation is simply your hourly rate times the number of hours you work in a given day. Note that this method cannot be used for long-term or permanent injuries.
It is important to remember that these two methods are extremely rough estimates and should not be considered a set in stone settlement number. Insurance companies often have their own techniques of determining pain and suffering, using less rudimentary methods such as computer programs. Other factors are taken into account, such as the type of injury, the treatment sought, and the length of time. Insurance companies may view some treatments excessive given the level of injuries and will not include the full treatment in their pain and suffering calculations.
It should also be noted that the facts of the case are not the only things that can influence the settlement for pain and suffering. Factors such as the likeability, credibility, consistency, and honesty of the plaintiff will be considered by the insurance company. They also take into account whether the plaintiff will be a good or bad witness. This is why it is important to have medical records and other documentation backing up the plaintiff’s statements.
It is a good idea to calculate out numbers for both methods to get a range you think is appropriate, then adjust according to the facts of the case while keeping in mind the insurance company has its own formulas.
What Other Benefits Can I Get in a Michigan Negligence Case?
In addition to pain and suffering, negligent drivers are also responsible for paying excess wage loss, even if you have not sustained a “threshold injury.”
This means even if you have not sustained a serious impairment of body function, you can still recover lost wages that exceed the statutory maximum amount available under first-party claims. Lost wages that extend beyond the 3 years paid by the no-fault insurance company are paid by the negligent driver’s insurance company.
Are there limits on the amount of a Michigan pain and suffering claim?
Many states have restrictions on pain and suffering claim amounts. However, In a Michigan car accident case, there is no limit set on pain and suffering claims. The jury does not have a maximum dollar amount that they can award. That said, the insurance policy limit of the at fault party often dictates the maximum amount of damages collected. An exception to this is if the defendant is not an individual but a large company.
How do I know what’s fair?
Use the Multiplier Method or the Per Diem Method to get an estimate of what you think you should be owed. Also consider the extent of your injuries and how it will affect your life moving forward. Finally, talk to an experienced attorney. They see cases like yours every day and they will work to ensure you will not be short-changed.
Proving a threshold injury or winning lost wages beyond three years is not easy and usually requires the professional help of an attorney. The Law Offices of Lee Steinberg has been helping Michigan car accident victims for over 40 years obtain the pain and suffering compensation they deserve. Our experienced team of Michigan car accident lawyers and Michigan truck accident lawyers are experts.
Contact our office today. You pay nothing unless we win your Michigan car accident case. Let us help you by calling 1-800-LEE-FREE (1-800-533-3733).
Ask Lee Free
Q:In personal injury cases, what amount of compensation is typically awarded for pain and suffering?
A: This depends on a lot of factors, including the amount of insurance coverage available, the severity of injuries and how long the injuries and impairments last. In Michigan, there are strict rules in getting money for pain and suffering so it’s important to contact a Michigan car accident lawyer if you have been injured in an accident.
Injury Attorney Video Notes
Under the law, to get compensated for a car accident claim – to get pain and suffering for a car accident – you must prove a couple things. First, you have to prove that the other person is at least 50% at fault for causing the accident: that’s liability. You have to prove they were injured in the accident, and that the injuries weren’t from something else. Even if it’s an aggravation of an injury they already had, that counts. But there’s got to be an injury, and it’s got to be from the car accident.
Under Michigan law, there’s another thing you have to prove, though. It’s called a threshold injury. And that means you basically have to be injured enough, so to speak, to get compensation. Just because you were in a car accident – and just because you might have been injured in a car accident – does not mean that you get compensation under Michigan law. You have to have that threshold injury.