Actual Damages

Individuals who are injured or suffer loss due to the actions or inaction of another person or entity may have the legal right to compensation or what is also referred to as “damages.” Compensation can include actual damages, referred to as compensatory damages, or punitive damages.

Actual damages include reimbursement for actual injuries or losses suffered. Punitive damages, however, are not tied to the actual loss or injury, but instead, are used to punish the defendant for their actions. Punitive damages are not awarded in every personal injury case, but only if the actions of the defendant are deemed especially egregious or despicable, and the court wants to ensure they are deterred from similar future actions.

Common types of Actual Damages

If a plaintiff wins their personal injury lawsuit the judge or jury will determine how much they should be compensated for their loss or injury. The goal of the award is to make the plaintiff whole or to restore them to their previous position prior to the negligent action.

Common types of actual damages paid can include:

• Compensation for current and future wages
• Compensation for medical expenses
• Compensation for household expenses
• Compensation for pain and suffering
• Compensation for consortium
• Compensation for mental anguish

If the negligent actions of the defendant resulted in the death of an individual, the court may also assess certain death benefits including payment for emotional distress of the surviving family members, funeral and burial expenses, loss of services and support, medical expenses incurred prior to death, and loss of consortium and companionship.

How long does the plaintiff wait for payment actual damages?

Most personal injury claims are settled out of court, but this does not mean that the plaintiff will be paid immediately. In fact, the amount of time it will take for the plaintiff to receive their settlement check can vary based on the defendant’s insurance policy, the type of case, whether the defendant will have to pay part of the award, and other extraneous circumstances. Talk to a personal injury lawyer if you have specific questions about your personal injury claim.

What can reduce actual damages paid for an injury claim?

Many plaintiffs injured in an injury claim may not realize that if the court determines they were at least partly responsible for their own actions their compensation may be reduced or completely eliminated. Although state laws vary, whether the state uses the theory of comparative or contributory negligence will determine how plaintiffs will be paid.

For example, in contributory negligence states (Alabama, District of Columbia, Maryland, North Carolina, and Virginia) compensation can be eliminated if the court determines the plaintiff was either partly or wholly responsible for their own injuries.

Pure comparative negligence states, however, determine how much each party was at fault and assess the compensation accordingly. Still other states use what is called the modified comparative fault rule and will have a threshold to determine if the plaintiff is awarded compensation.

Currently, thirty-three states adhere to some type of modified comparative fault rule. Twelve states use a 50% bar and allow plaintiffs to recover compensation if they are less than 50% at fault for their own injuries. The remaining states use the 51 percent Bar Rule which allows the plaintiff to recover compensation if they are 50% or less responsible for their own injuries. Talk to a personal injury lawyer if you have questions about the laws in your state.