If you’ve been hurt in a car accident or other personal injury incident in West Virginia and someone else is at fault, you are entitled to compensation for your suffering and losses. These losses are generally referred to as “damages.”
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 — things like emotional distress, loss of enjoyment of life, or the loss of love and affection a spouse might experience after a wrongful death. These are called noneconomic damages.
One commonly awarded noneconomic damage is pain and suffering. Generally speaking, there are two parts to pain and suffering: your physical pain and your mental anguish. The experience of pain, grief, anxiety, illness, sadness, despair, humiliation, depression, insomnia, etc. — these things are all very real, and they may be an enormous part of the loss you experience after an accident.
You deserve to be compensated for those things, and under West Virginia personal injury law, you can be. But these pain and suffering damages 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 — and we also explain how an experienced West Virginia personal injury lawyer may be able to increase the value of your pain and suffering claim.
How Pain and Suffering Damages Work, Generally Speaking
In personal injury cases, the law is meant is to put the victim back in the position he or she would have been had the injury never happened.
The victim must prove that their losses happened because of the defendant’s negligence. Once they’ve made that case, the court will try to value each of the victim’s damages as reasonably and as fairly as possible.
As we have already seen, purely economic damages 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. invoices, repair estimates, etc.) for awarding those damages.
With non-economic damages, even though the court doesn’t have a clear economic basis for valuing the cost, the court’s 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. So it will try to compensate your pain and suffering with money as best it can.
Of course, most personal injury claims never go to court. Instead, most claims are resolved through private negotiations and settlement agreements with the insurance company. 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 popular methods of calculation that attorneys on both sides (yours and the insurance company’s) will often use to calculate pain and suffering.
The first method is sometimes called the Multiplier formula (or Specials formula). Using this method, the insurance company will multiple your economic damages (e.g. medical bills, lost wages) by a number between 1 and 5. The more severe your injury, the higher the multiplier. A minor injury might be multiplied by 1. A moderate injury might be multiplied by 2 or 3. A more serious injury might be multiplied by 4, 5, or even more.
For example, let’s suppose you suffer whiplash and lacerated leg that requires stitches from a car crash and you incur $4,000 in medical bills. You also miss work for over a week, adding up to $1,000 in lost wages. In total, you have $5,000 in economic damages. Given the moderate severity of your accident, the insurance company might multiply your damages by 3, arriving at a total of $15,000 for your medical bills, as well as pain and suffering. (This would essentially be $10,000 in 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 suffering (for example, $10 or $100… the number can be higher or lower depending on the circumstances) and then multiply that by the number of days you spend recovering from your 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 suffering. (This would be in addition to your $5,000 in actual 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 (e.g. which multiplier to use, how much money to assign per day, how many days to allow for recovery, etc.) can all dramatically change the pain and suffering calculation.
If you hire a West Virginia personal injury attorney, he or she will fight for using the calculation that best represents your interests, fighting to maximize your compensation at every turn. You should expect the insurance company to look for ways to minimize your pain and suffering damages. An aggressive, experienced attorney can fight back against those tactics. If your claim were to go to court, the court would expect to see a fair and reasonable basis for the calculation of pain and suffering. At Colombo Law, we work diligently to persuade the insurance company that any lowball settlement offer will not withstand a court’s scrutiny.
Please note, however, that insurance companies do not have to use either of these formulas. Indeed, many insurance companies have their own proprietary, algorithm-based software that they use internally to calculate pain and suffering. They may use this software to estimate their own risk and potential liability (and the potential cost of taking your claim to court) and then make settlement offers accordingly. An experienced lawyer can help you hold the insurance company accountable by fighting for transparency and fairness in the calculation of your compensation.
Is There a Cap on Pain and Suffering in West Virginia?
Unlike many other states, West Virginia has not enacted a statutory cap on non-economic damages for most personal injury claims. For the most part, there is no limit or maximum dollar amount that you can recover for pain and suffering damages, and in some cases, the total damages can be substantial. We must emphasize, however, that pain and suffering awards must be reasonable. Wild, excessive, or unreasonable pain and suffering awards will typically be struck down by a court.
There are some exceptions: there is a cap on non-economic damages (including pain and suffering) in medical malpractice cases in West Virginia. If the medical malpractice causes death or permanent injury, the total non-economic damages will be capped at $500,000. Otherwise, total non-economic damages will be capped at $250,000.
Note: punitive damages (which are only available in certain cases) are not considered non-economic damages for the purposes of calculating the cap on medical malpractice damages. (Punitive damages are subject to a separate limit of $500,000 in West Virginia for medical malpractice cases.)
What Is a Pain and Suffering Calculator?
If you look around, 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, or whether you are entitled to damages at all.
As we have shown, insurance companies use a variety of different formulas, and each formula depends on a number of specific variables. Those variables are determined by the specific facts and circumstances of your accident, 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, nor they can anticipate the approach your claims adjustor might use. Even the slightest change in variables can produce significantly different results.
If you want to learn more about how insurance companies calculate pain and suffering, or if you’d like to find out how much money you might be entitled to in your particular situation, please contact Colombo Law for a free consultation with one of our West Virginia personal injury lawyers.
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.
Schedule a Cost-Free, No-Obligation Legal Consultation Today
The West Virginia personal injury lawyers at Colombo Law bring years of experience to the table, coupled with a tireless passion for justice.
In the majority of our cases, we have been able to negotiate favorable settlements without going to trial, getting our clients more money than the insurer was willing to offer before we got involved.
We fight to maximize compensation. Let us fight for you. Colombo Law proudly serves victims across the whole state of West Virginia, including: Bridgeport, Buckhannon, Clarksburg, Elkins, Fairmont, Morgantown, Parkersburg, and Weston.
Here’s our promise to you:
- A free case evaluation with absolutely no obligation to hire us
- Honest guidance and advice
- No attorney fees unless and until we recover damages for you
- Our time, passion, respect, and attention to your needs
A strict legal time limit (i.e. statute of limitation) does apply to most West Virginia personal injury claims, so please don’t delay. Contact Colombo Law and schedule a free case review right away. Just dial 888-860-1414 (304-599-4229 in Morgantown) or contact us online.