If you have been hurt in a Morgantown car accident or other incident resulting in personal injury in West Virginia and someone else is at fault, you are entitled to compensation for your losses. These losses are generally referred to as “damages.”
One of the noteworthy types of damages in a personal injury case is pain and suffering. It is also one of the most frequently misunderstood.
Before you accept a settlement for your personal injury claim, it is important to understand how damages as a whole are calculated, when pain and suffering damages are recoverable, and what information you should trust when determining the value of your claim.
How Are Damages Assessed in a Personal Injury Case?
West Virginia personal injury law recognizes a wide range of damages. Some of these are purely economic in nature, meaning there is a clear and demonstrable economic value for the losses.
Examples of economic damages include medical expenses, vehicle repair costs, and lost wages. Through bills, paystubs, and other evidence, victims can generally demonstrate a precise dollar value for these losses.
But some damages aren’t so easily quantifiable. These include emotional distress, loss of enjoyment of life, and the loss of love and affection a spouse might experience after a wrongful death. These are called noneconomic damages or pain and suffering damages.
What Constitutes Pain and Suffering in a West Virginia Personal Injury Lawsuit?
Generally speaking, there are two parts to pain and suffering. The first is your physical pain and your mental anguish. The second is the emotional distress associated with a personal injury, including:
- The emotional effects of chronic and/or intense pain
- And more
Although not easily quantifiable, pain and suffering is very real. In fact, these noneconomic losses may represent a significant portion (or even the majority) of your personal injury damages.
You deserve to be compensated for all of your economic and noneconomic losses under West Virginia personal injury law. However, damages for pain and suffering don’t come with a clear dollar amount attached to them.
So how do insurance companies calculate pain and suffering? We tackle that question in the sections to follow, as well as how an experienced West Virginia personal injury lawyer can fight for the full value of damages including pain and suffering.
How Pain and Suffering Damages Work, Generally Speaking
In personal injury cases, the law is designed to put the victim back in the position he or she would have been had the physical injury never happened. Victims must prove that their losses happened because of the defendant’s negligence. If the claim is successful, the court will value the victim’s damages as reasonably and as fairly as possible.
As we have already seen, purely economic damages such as medical expenses can be quantified rather straightforwardly. The two sides might argue about whether the costs were fair or whether they were truly caused by the defendant’s negligence, but the court does at least have an economic basis (e.g., medical bills, financial statements, etc.) for awarding these damages.
With noneconomic damages, even though the court doesn’t have a clear economic basis for valuing the cost, the goal is the same: to put you in the same position you would have been had the injury never happened.
It goes without saying that a court cannot turn back time or take away your pain. Practically speaking, in most cases, the only thing a civil court can do is award money. As such, the goal of the court is to try to compensate you for your pain and suffering with money as best it can.
Of course, most personal injury claims never go to court. Instead, the majority of claims are resolved through private negotiations and settlement agreements with insurance companies. But the basis for compensation remains the same: fair compensation to put you where you would have been had the injury not occurred.
Below, as we look at the various ways insurance companies calculate pain and suffering, it’s important to keep this fundamental goal in mind.
How Insurance Companies Calculate Pain and Suffering for a Settlement
There is no hard and fast rule for how pain and suffering damages will be calculated, regardless of whether you’re talking about a private insurance settlement or a jury trial. There is no single formula that must be used.
There are, however, a few different methods insurers employ to calculate pain and suffering:
1. The Multiplier Method of Calculating Pain and Suffering
The first method is sometimes called the multiplier formula (or specials formula). Using this method, the insurance company will multiply your economic damages (e.g., medical bills, lost wages, property damage, etc.) by a number between 1 and 5.
The more severe your injury, the higher the multiplier. A minor injury might be multiplied by 1 while a moderate injury might be multiplied by 2 or 3. Meanwhile, a more serious injury might be multiplied by 4, 5, or even more.
For example, let’s suppose you suffer whiplash and a lacerated leg that requires stitches from a car crash. As a result of these injuries, you incur $4,000 in medical bills. You also miss work for over a week, adding up to $1,000 in lost wages.
In this example, you have a total of $5,000 in economic damages from the accident. Given the moderate severity of your injuries, the insurance company might multiply your damages by 3, arriving at a total of $15,000 for your pain and suffering.
2. The Per Diem Method of Calculating Pain and Suffering
The second method is the per diem or per day approach. Using this method, the insurance company will assign a dollar amount to your pain and suffering (e.g., $10, $100, or a higher or lower number depending on the circumstances). Next, the carrier will then multiply the per diem value by the number of days you (a) spend recovering from your accident and (b) are likely to experience adverse effects from the accident.
Returning to our previous example, let’s suppose it takes you 50 days to recover from your injured leg and whiplash. If the insurance company assigns you a pain and suffering value of $100 per day, you would arrive at $5,000 in pain and suffering damages. (This would be in addition to your $5,000 in economic damages.)
You can see how the choice of formula can significantly impact the amount of money you receive for pain and suffering. Likewise, within each formula, the insurance company’s judgment call (i.e., whether to use the pain and suffering multiplier or a per diem rate, how much money to assign per day, how many days to allow for recovery, etc.) can all dramatically change the pain and suffering calculation.
3. Proprietary Formulas
Insurance companies are all about the numbers. The most important number is the bottom line, but there are other values to consider.
When personal injury claims are made, many insurance companies use proprietary software to analyze the details and determine how much (if anything) to offer to settle the case. These algorithms calculate not only the value of damages such as pain and suffering but the company’s potential liability and the relative risks of going to trial.
Insurance adjusters will rely heavily on the analysis performed by their company’s proprietary software. Unfortunately, only employees of the insurance carrier will have access to the data, making it difficult for claimants to dispute a lowball settlement offer.
How Do Lawyers Determine Pain and Suffering?
Although insurance companies may use the above formulas for calculating pain and suffering damages in a personal injury claim, this is far from guaranteed. In reality, insurance companies frequently overlook and undervalue a claimant’s pain and suffering.
Settlement offers need to be carefully scrutinized to determine if the insurer is calculating pain and suffering accurately. In some cases the insurance company may ignore pain and suffering damages entirely when calculating a settlement.
Personal injury lawyers take a markedly different approach to calculating the value of pain and suffering damages. Instead of relying on dubious equations designed to spit out an artificially low result, a personal injury attorney will fully review the evidence and consult expert witnesses to assess what you are entitled to for your pain and suffering.
Some of the key aspects your lawyer will take into account when calculating damages for pain and suffering in your personal injury claim include:
- The seriousness of your injuries
- How long you are expected to experience the impact of your injuries (i.e., pain and suffering damages will be higher if the injury has long-term adverse effects or results in permanent impairment)
- What medical care and therapy is needed; though it is intended to improve your condition, treatment for serious injuries can involve considerable pain and emotional distress in its own right
- How the injury affects your life (e.g., a runner and fitness enthusiast who loses a leg would likely have a stronger claim for emotional distress damages than someone who lived a more sedentary lifestyle)
- State and local laws that place a cap on noneconomic damages (see below)
- Available insurance coverage; insurance companies will not offer a settlement that exceeds the policy limits, even if your pain and suffering and other damages are higher than the maximum insurance coverage
- Issues of comparative negligence; if you are partially at fault for the accident or your injuries, you will be entitled to recover only a portion of your damages (including pain and suffering)
None of these factors can be easily plugged into a formula and lead to an accurate pain and suffering calculation. Rather, a personal injury attorney will need to review the evidence closely and consult expert witnesses who can testify as to the noneconomic losses connected to your injury.
What Is the Formula for a Pain and Suffering Settlement?
Insurance companies look for ways to minimize your pain and suffering damages and the value of your claim as a whole. By contrast, a personal injury lawyer represents your best interest and fights to maximize compensation.
Experienced injury attorneys know how insurance companies utilize pain and suffering multipliers, per diem formulas, and proprietary software in calculating settlements. Generally, the insurance adjuster will use the lowest figure when making a settlement offer. During settlement negotiations, your lawyer will push the insurer to use the calculation that is most favorable to you.
Negotiating a personal injury settlement can become a question of mathematics, with the insurance company preferring one formula and you and your personal injury lawyer presenting another. If your case settles, the number will likely fall in between the calculations made by both parties.
What Formula Do the Courts Use for Pain and Suffering?
Sometimes claimants and insurance companies cannot reach a settlement agreement. One of the most common areas of dispute is pain and suffering, which is subject to less precise calculation and greater interpretation than the more hard-and-fast economic damages.
At trial, the court is not obligated to use a particular formula when assessing pain and suffering damages. Rather, the pain and suffering calculation will be made on a fair and reasonable basis according to the evidence.
Insurance companies know that the math changes if your case goes to court. Awards for damages can be much higher at trial than what they would have been if the case settled.
Nonetheless, it is not uncommon for insurers to hold out and refuse to settle if they think they can win in court or they believe that their assessment of contested damages (such as pain and suffering) is accurate. The key to reaching a favorable settlement often rests on your personal injury lawyer’s ability to persuade the insurance company that any lowball settlement offer will not withstand a court’s scrutiny.
Is There a Cap on Pain and Suffering in West Virginia?
Unlike many other states, West Virginia has not enacted a statutory cap on noneconomic damages for most personal injury claims. Generally, there is no limit or maximum dollar amount that you can recover for pain and suffering damages. As such, the total damages in some cases can be substantial.
Claims involving medical malpractice are the only type of litigation subject to a noneconomic damages cap in West Virginia. West Virginia Code § 55-7B-8 caps noneconomic damages for injuries suffered as a result of medical malpractice at $250,000.
There are several scenarios under this law (known as the West Virginia Medical Professional Liability Act) where plaintiffs can recover up to $500,000 for pain and suffering and other noneconomic losses, including:
- “[Permanent] and substantial physical deformity, loss of use of a limb or loss of a bodily organ system”
- “[Permanent] physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities”
- Wrongful death
It is important to note that the pain and suffering damages you seek must be reasonable. Insurance companies will not pay wild, excessive, or unreasonable compensation for pain and suffering. Such awards will typically be struck down by a court as well.
What Is a Pain and Suffering Calculator?
If you look around the Internet, you might come across one or more free online pain and suffering calculators. Be cautious. These calculators cannot accurately predict how much money your pain and suffering damages might be worth, nor can they tell you whether you are entitled to damages at all.
As we have shown, insurance companies use a variety of different formulas. Each formula depends on a number of specific variables. These variables are determined by the specific facts and circumstances of your personal injury, and they are often the subject of intense negotiation between the insurance company and your lawyer.
Online pain and suffering calculators cannot adequately account for these variables. Furthermore, they cannot anticipate the approach an insurance adjuster might use. Even the slightest change in variables can produce a significantly different pain and suffering calculation.
If you want to learn more about how insurance companies calculate pain and suffering or how much money you might be entitled to in your particular situation, it is in your best interest to speak to a personal injury attorney as soon as possible. Knowledgeable legal guidance is crucial for understanding what compensation you may be due for injuries caused by someone else’s negligence.
Calculating pain and suffering damages is one of the most important roles an attorney can play in your personal injury case. It is important to look beyond your immediate losses to determine what constitutes full compensation.
The attorneys at Colombo Law bring years of experience to the table. We have a tireless passion for justice, as well as an extensive history of settlements and verdicts in a wide range of personal injury claims. While we cannot guarantee specific results in advance, we can help you understand how the law might apply to your claim and how much money accident victims in similar situations have recovered in West Virginia in the past.
In the majority of our cases, we have been able to negotiate favorable settlements without going to trial. We are often able to get our clients more money than the insurer was willing to offer before we got involved.
Should your case proceed to trial, we will fight to maximize compensation on your behalf. Our experience in the courtroom frequently enables us to achieve much higher awards than other personal injury law firms in the area.
Here’s our promise to you:
- A free case evaluation with absolutely no obligation to hire us (No Fee Promise)
- Honest guidance and advice
- No attorney fees unless and until we recover damages for you
- Our time, passion, respect, and attention to your needs
Find out what your injury case is really worth. Contact Colombo Law by calling (304) 599-4229 today for a FREE consultation. Our personal injury lawyers serve clients in Morgantown and throughout West Virginia.