Damages in Death Cases

April 1, 2011

Damages for Wrongful Death of Wife

My wife was killed in a car wreck. She was not working at the time of her death but planned to go back to work when our daughter went to school. What damages am I entitled to receive from the person who caused the wreck?

These are the types of damages that can be recovered in Tennessee : (a) medical expenses for treatment of the injuries that resulted in death; (b) funeral bills; (c) conscious pain and suffering from the date of the injury until the date of death; (d) loss of enjoyment of life between the date of injury and death; (e) loss of earning capacity between the date of injury and death; and (f) the pecuniary value of life.

In all cases, the pecuniary value of life includes the present value of the decedent’s lost future earning capacity less those living expenses necessary to maintain the decedent’s person so that they can work. In cases involving the death of a spouse, the surviving spouse can recover damages for the loss of consortium of the decedent. In cases involving the death of a parent, the children can recover damages for the loss of love, society, affection and guidance of the parent. Each of these types of damages are included in the definition of the “pecuniary value of life.”

March 3, 2011

What Are Punitive Damages?

by The Law Offices of John Day, P.C.

What are punitive damages? How frequently are they awarded in Tennessee?

Punitive damages are awarded only in cases where the defendant acted intentionally, knowingly, maliciously, or recklessly. Punitive damages are designed to punish the wrongdoer and deter both the wrongdoer and others from similar conduct in the future.

In Tennessee one must prove they are entitled to punitive damages by "clear and convincing" evidence. This is a higher burden than applies in the typical civil case, where liability and damages must be proved by only preponderance of the evidence.

February 9, 2011

Placing Caps On Damages in Medical Malpractice Cases Will Lower Doctor Malpractice Insurance Rates, Right?

by The Law Offices of John Day, P.C.

I keep hearing that Tennessee doctors pay a lot of money for malpractice insurance and that if we limit the right of patients to bring lawsuits doctors will save money on insurance. Is that right?

There is no reason to believe that malpractice rates will be dramatically or even materially reduced if the Tennessee Legislature caps damages in medical malpractice cases.

Here are a few statistics that address the issue. In 2010 an internist in Tennessee paid $7076 for $1,000,000 worth of medical malpractice insurance. This provided the doctor for up to $1,000,000 for any single act of malpractice and total payments for three or more claims of $3,000,000 in any year. The rate for this insurance was 23.11% less than it was in 2009.

January 17, 2011

What Happens If I Lose An Amount at Trial Greater Than My Insurance Coverage?

by The Law Offices of John Day, P.C.

I caused a car wreck and the other party was hurt. I really don’t know how badly she was hurt but her medical bills are $40,000. The case goes to trial in about 3 weeks. My lawyer, who was hired by my insurance company, says that the case will probably go to trial because the person who got hurt wants $125,000 to settle the case and the insurance company has only offered $80,000. I only have $100,000 of insurance for this wreck. What happens if the case goes to trial and the jury awards the lady who got hurt more than $100,000?

If the jury awards, say, $120,000 your insurance company will have to pay $100,000 and you will have the responsibility of paying the last $20,000.

When you are sued for more than your insurance policy limits you should typically seek the input of a private lawyer to help you make sure that your insurance company is treating you fairly. Your company has a duty to fairly evaluate claims against you to protect you from an excess judgment. I do not have enough information to say if your insurance company is treating you fairly in this case but I would suggest that you seek the advice of a competent lawyer as soon as possible.

January 14, 2011

How Much Money Can You Ask For in a Lawsuit?

by The Law Offices of John Day, P.C.

I was hurt in a personal injury case. I have hired a lawyer and he has filed a lawsuit for me. How much money can I ask for?

You have asked a question that is impossible to answer with the information you have given. What were your injuries? What were your medical bills? Are you likely to have future medical bills as a result of your injuries? Did you lose any income as a result of your injuries? Do your injuries impact your future earning capacity? How have the injuries affected your ability to enjoy your life?

There are many more questions that have to be answered. Here are just a few. How old are you? Do you have any other medical conditions that affect the quality or length of your life? What was your level of physical activity before you injury? Where did the injury happen? Where will your case be tried? How did you get injured? Who caused your injuries? Who is the adverse lawyer?

December 2, 2010

Is There A Cap on Damages In Tennessee?

by The Law Offices of John Day, P.C.

Some states place a cap on damages in personal injury and wrongful death cases. Does Tennessee?

No, with a couple of exceptions. At the present time, Tennessee does not cap damages in any type of personal injury or wrongful death cases except cases filed against state and local governmental entites. There are no caps against people or non-governmental entites.

The amount of damages in any case is determined by a judge or, if a jury is requested, a jury. If a jury is requested, the judge reviews the jury’s decision after the trial and can lower or increase the amount of damages. Damages are rarely increased.

November 12, 2010

Can I Require the Insurance Company to Pay Interest on My Personal Injury or Wrongful Death Settlement?

by The Law Offices of John Day, P.C.

I was hurt in a car wreck six months ago. It wasn’t my fault. I have been waiting for over a year for the case to settle. I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance. Can I get the insurance company to pay interest on my settlement? It doesn’t seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law. Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits.

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest. Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.

November 10, 2010

What Damages Are Recoverable in Tennessee for Wrongful Death?

by The Law Offices of John Day, P.C.

My husband was killed in a car wreck by a drunk driver. What damages can be recovered by me and our children?

These are the types of damages that can be recovered: (a) medical expenses; (b) funeral bills; (c) conscious pain and suffering from the date of the injury until the date of death; (d) loss of enjoyment of life between the date of injury and death; (e) loss of earning capacity between the date of injury and death; and (f) the pecuniary value of life.

In all cases, the pecuniary value of life includes the present value of the decedent’s lost future earning capacity less those living expenses necessary to maintain the decedent’s person so that they can work. In cases involving the death of a spouse, the surviving spouse can recover damages for the loss of consortium of the decedent. In cases involving the death of a parent, the children can recover damages for the loss of love, society, affection and guidance of the parent.. Each of these types of damages are included in the definition of the “pecuniary value of life.”

September 30, 2010

Value of a Wrongful Death Case

by The Law Offices of John Day, P.C.

My wife was killed in a tractor-trailer wreck. The wreck was not her fault. What is this case worth?

That question is impossible to answer without a great deal more information. Was your wife working outside the home? What was her income? What was her age? What was her state of health before the wreck? How many children does she have? Do any of those children have special needs that required her to play a bigger role in their lives after they reached the age of 18 than the ordinary adult child?

These and many, many more questions must be answered before any lawyer can give you a reasoned opinion on the value of a wrongful death case.

August 9, 2010

The Other Driver Doesn’t Have Enough Insurance!

by The Law Offices of John Day, P.C.

I was in a bad car wreck. I had $50,000 in medical bills and missed eight weeks of work (I make $800 per week as a mechanic). I am probably going to have to have another surgery. My doctor also says I will have arthritis for the rest of my life. I just found out that the person who hit me only has $100,000 of liability insurance. That is not enough for what he did to me. Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause. A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased he or she is liable for the rest.

The problem, of course, is collecting from a person who causes harm. To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both. Many people have very few assets and insufficient income to make a payment to the person who they hurt. If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation. (There are some exceptions to this. For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.)