What Are Damages?
Lawyers use the word “damages” to describe the compensation you can recover for the losses and harms that someone suffers when injured because of someone else’s careless behavior.
Washington and Oregon use different terminology to describe the categories of damages or compensation you may claim in an auto injury claim.
The Oregon Claim
Oregon statute splits the compensation you can recover into two categories, known as “economic” and “non-economic” damages.
The Oregon Claim: Economic Damages
In Oregon, the economic damages are defined as the losses that are “objectively verifiable.” This means you can show something to a defense attorney, judge, jury, or even an adjuster, and everyone will agree on what you are claiming. A medical expense is the most common form of a claim for economic damages in an Oregon auto injury claim.
If you show someone an emergency room bill, everyone will agree that the bill is for a certain amount. That makes it objective. The other side of the case may not agree that you may recover that medical expense, but they will agree on how much you are claiming.
How could someone argue over a medical bill like an emergency room visit bill? That is a good question. Most disputes over medical expenses do not involve emergency room bills, but expenses that occur later, like the need for a surgery, or bills related to a condition that the other side of a case does not agree is caused by a collision.
Another common claim for economic damages in Oregon is lost income, or lost earning capacity. What’s the difference between these two claims.
A lost income claim is a claim you would have earned a specific amount of money had you not been injured.
A lost earning capacity claim is a claim you lost the ability to earn money because of your injury, and an expert like a vocational counselor or economist can calculate the value of that loss.
A Court of Appeals case in Oregon found a valid claim for lost earning capacity because the injured person showed the value of the work performed, even if not getting paid for it.
Economic damages are not limited to medical expenses or lost income that has occurred. In serious injury claims, there may be a claim for future lost income and future medical expense too, but it often requires an expert opinion to figure out the future losses.
The Oregon Claim: Non-Economic Damages
When we consult with clients, we describe non-economic damages as compensation for the loss of your health. When a judge instructs an Oregon jury on non-economic damages, the judge explains that these damages are the “subjective non-monetary losses” including pain, suffering, and loss or limitation the injuries cause with activities of everyday life outside of work. The judge will also tell a jury that they need to be “reasonable” when fixing the compensation for non-economic damages.
Non-economic damages cover all kinds of “subjective” losses. There is no check stub, receipt or bill that places a specific value on a non-economic loss. When we argue for non-economic damages, we provide the jury with examples of how to value these losses.
Many factors go into determining the non-economic damages you should claim in a personal injury case. However, the major factors include the nature and extent of the injury, and whether and how much the injury permanently affects your everyday life into the future.
Washington claims for damages are similar, but the terminology is different. The objective losses (medical expenses and lost wages) are called “special” damages. The damages you can claim for loss of your health are called “general” damages.
The “special” damages claim is much like the Oregon “economic” damages claim. The most common examples of “special” damages are medical expenses and lost income. You may claim both past and future losses, but like Oregon you may need an expert, like an economist, vocational counselor, or life care plan or to calculate and improve future damages.
General damages include compensation for the loss of your health because of your injuries. There are no check stubs, receipts or billing statements that define this category of damage. Instead, a jury is asked to look at how an injury has affected all aspects of your everyday life because of your injury.
You Have to Prove It
Regardless of how you approach your Oregon or Washington auto injury claim, remember that you must prove any damages you claim. Lawyers call this the “burden of proof.” In both states, you must prove the harm suffered “by a preponderance of the evidence.” This means you must show that the harm you claim more likely occurred because of the other driver (defendant’s) negligent behavior. Again, this almost always requires some kind of expert testimony. Still, testimony from friends, family and coworkers can be powerful.
How Insurers “Value” Damages
If you suffer a serious injury in an auto collision, you naturally consider how the injuries have affected your everyday life in considering how much the claim, especially for your non-economic damages (Oregon) or your general damages (Washington). Insurance companies do not.
Insurance companies instead look at things they can compare from one case to another. For example, many insurers use software that generates a range of settlement values based on things like diagnostic and billing codes found in your medical records, or past jury trial results in the area where your case may go to trial.
Sometimes, you may have to go to trial, depending on how strongly you feel about your case, and your attorney’s advice. In other cases, you may build a strong case, which will convince an insurer to be more “reasonable” when making an offer of settlement.
How you move forward must be an informed decision.
If you have an injury claim and want to know more about what you can claim, and how to prove it, contact us. At the very least, we can help you know where you stand.