New Orleans, Louisiana Apportionment of Damages - Injury Lawyer
New Orleans Personal Injury Lawyers - Types of Damages and Apportionment of Damages
When you or a family member are injured by someone else's negligence, you have a right to recover monetary damages. While money alone can never truly compensate you for the injuries you receive or especially for the loss of a loved one, the purpose of personal injury law is to try to bring you as close as possible to how you were before the accident. Be that as it may, money is the only legal remedy available in these difficult situations and you should receive monetary damages for your loss. New Orleans personal injury lawyers and New Orleans wrongful death lawyers are experienced in assessing monetary awards and know what type of a settlement or award you might be able to expect from your claim.
When determining the value of a New Orleans personal injury case, you must first consider the type and degree of loss or injury involved. The most severe loss is death, and there is a body of law dealing specifically with death. If your loved one has been involved in a tragic accident and died as a result, contact one of the New Orleans wrongful death attorneys listed above today to discuss your options.
When someone is killed and the surviving family members believe a lawsuit may be in order, a New Orleans wrongful death lawyer can help them assess the legal issues and prepare necessary documents and expert witnesses for trial. A Southeastern Louisiana wrongful death attorney will first assess who the proper parties are to make a claim.
Situations that can reduce or bar recovery:
A legal doctrine called Comparative Fault can reduce your recovery.
In many trials, the accident victim is actually found to be partially at fault for causing the accident. A common example would be a car crash where both drivers did something wrong, but one is more at fault. When an injury occurs, a court determines the fault of every person who was responsible in any way. The amount of fault is measured in percentages. Damages are reduced by the percentage of fault assigned to the victim. In a case where the injury victim is found to be 10% at fault, he can only recover 90% of the damages awarded by the jury. In a case where the victim is 90% at fault, he can still recover 10% of what the jury awards him. Louisiana's system is known as Pure Comparative Fault. Other states have more complicated rules.
Louisiana's actual statute concerning comparative fault is:
RD 9:2800.68. Comparative fault
A. An action by an individual user pursuant to R.S. 9:2800.64 is governed by the application of comparative fault as provided in Civil Code Article 2323. Comparative fault attributable to the individual user shall not bar recovery but shall reduce the award of compensatory damages proportionally, according to the amount of fault attributable to the individual user.
B. The defendant shall have the burden of proving the comparative fault of the plaintiff, which shall be shown by clear and convincing evidence.
C. Comparative fault shall not be attributable to a plaintiff who is not an individual user, unless that plaintiff intentionally gave the individual user money for the purchase of the illegal controlled substance.
Recovery can also be reduced because Louisiana does not use the doctrine of Joint and Several Liability.
Many states use a doctrine called joint and several liability. This means that, in most other states, when multiple defendants are found responsible, any one of them is responsible for paying the entire judgment if the other parties do not pay or are not able to pay. Louisiana, on the other hand, does not use joint and several liability in most cases. This means that if you are in a car accident and the accident is 50% the other driver's fault and 50% the city's fault (because of a broken traffic light, for example), the city cannot be forced to pay 100% of the damages even if the other driver has no insurance and no money. While, in theory, it is more equitable only to force a party to pay for the percentage of the accident that the party is responsible for, it often prevents injury victims from recovering the full amount that a jury has awarded them.
The only case where joint and several liability is permitted in Louisiana is when multiple defendants conspire to do the action, which leads to the injury. For example, if two people agree to mug you by beating you and stealing your wallet, both would be responsible for damages. This almost always involves some level of wrongdoing or malicious conduct.
You may not be able to recover anything if you wait too long - What is the Prescriptive Period in New Orleans Louisiana?
Louisiana has something called a period of prescription. This is similar to a statute of limitations in other states. Prescription means that you only have a limited time to initiate a lawsuit after you are injured. In general, the period of prescription for personal injuries in Louisiana is one (1) year, but in some cases it can be extended. Most of the cases where the period can be extended deal with injuries that could not have been discovered until after the accident. In these cases, a suit must usually be brought within one (1) year of when the injury was discovered or should reasonably have been discovered. In general, this must be within three (3) years of when the incident causing the injury occurred.
The laws of damages are extremely complicated. If you or a family member has been injured in New Orleans or Southern Louisiana, call one of the New Orleans Personal Injury Lawyers listed on this site as soon as possible.
Who can recover damages when someone is killed through negligence?
When someone is killed by the wrongful act of another in Louisiana, it is important to know who can recover damages. The following family members can make claims:
- Spouses - If the person who died (the decedent) was married, then the spouse is a proper party to file suit.
- Children - Natural and adopted children of the decedent may also maintain a wrongful death claim due to the death of their parent. There are sometimes large inequities in situations where a loving step-parent has raised someone else's child and then the step-parent dies. The hurt and emotional loss to the step-child is large, but Louisiana law does not currently allow recovery by a step-child. Lastly, it is significant that there is no restriction on the age that a child must be to sue for the wrongful death of a parent. Even grown adult children have a cause of action to sue for wrongful death on behalf of their deceased parent and may wish to seek the help of a New Orleans wrongful death attorney in such cases.
- Parents - Parents of minor and of major (adult) natural and adopted children may also make a parental wrongful death claim.
- Estate - The decedent's Estate itself has a claim, under the Louisiana Survival Statutes, for anything the decedent could have sued for before he or she died.
What types of damages can be recovered when someone is wrongfully killed?
When negligence leads to a family member's death in Louisiana, there are multiple types of damages that can be recovered. The first are called survival damages. Survival claims are claims by the family that were inherited when the decedent died. This means that the family can sue for anything that the decedent could have sued for between the instant he was injured and the instant he died.
As an example, imagine that an oil worker was knocked off a rig and suffered broken ribs. While he is in the water, waiting to be rescued, he is in very serious pain. Suddenly, he sees a shark. The shark circles slowly. The man is scared he might drown and scared that the shark might kill him. The shark approaches and takes a bite. The man is suffering extreme pain and fear. The shark comes back and bites his leg off. The man is in the water, in pain, knowing he will bleed to death before he can be rescued. For five minutes, he thinks about dying, about his family, and about how much pain he is in. Eventually, he dies in the water. His family could sue for the pain and suffering and mental anguish the man experienced between the time he was knocked off the rig until the time he died. Louisiana allows the following types of recovery for a survival claim:
- Damages from the moment of the injury until the moment before death, including physical pain and suffering that the decedent felt between being injured and dying;
- Mental anguish that the decedent felt between the time he was injured and the time he died; and
- Lost earnings from the time period when the decedent was injured but alive and unable to work.
The second category of damages stem from Louisiana Wrongful Death claims. These damages allow the family to recover the damages they suffered as a result of their family member's death. The types of damages that family members can receive for wrongful death include:
- Loss of love, affection and companionship;
- Sorrow, grief and mental anguish;
- Loss of services (including household duties and chores);
- Loss of support from time of death to date of trial;
- Loss of future support;
- Loss of consortium (intimate relationship with a spouse); and
- Funeral and Medical expenses.
Negligent or Intentional Infliction of Emotional Distress
In some cases, Louisiana families may be put through severe emotional trauma and anguish due to the negligence, recklessness, or intentional wrongdoing of another party. When this occurs, a New Orleans personal injury attorney can help them pursue a claim for Negligent Infliction of Emotional Distress (NIED) or Intentional Infliction of Emotional Distress (IIED). This claim may be brought in addition to other claims for monetary damages, and is often brought by the family members of an injury victim, for example, after witnessing a severe trauma inflicted upon their loved one. Claims for the negligent infliction of emotional distress are rarely allowed in Louisiana. The specifics of when this type of claim can be brought are very complicated and fact-specific, but in rare situations where you or your family members have witnessed a loved one who is a close relative being injured due to negligence or intentional wrongdoing, and are now suffering mental anguish as a result, you may be entitled to compensation. Often, it is also required that the person causing the injury had a duty to you. Contact a New Orleans personal injury attorney or Southeastern Louisiana personal injury attorney today to discuss a potential NIED or IIED lawsuit.
What are some common types of injuries for which Orleans Parish, Jefferson Parish and St. Tammany Parish residents may be compensated?
(1) Death - Obviously the most severe injury is death and compensation for wrongful death is, of course, available to bereaved family members. However, sometimes death is not instantaneous and additional compensation may be available. Above, "conscious pain and suffering" was discussed as an element of recovery. Whether a decedent suffered consciously prior to death is a very important area of investigation for the Southeastern Louisiana personal injury law firm. For example, in an explosion case, sometimes the injury attorney will need to retain an accident reconstructionist to explain that the death was not instantaneous. This can be very hard for the family to listen to at trial, but it is essential to prove if monetary compensation is to be awarded by a jury and is also necessary to send an adequate message to the party responsible for causing the death;
(2) Back, Neck, & Spinal Injuries - Spinal injuries are the most common injuries seen in car accidents and work related injuries. This is because the spinal vertebrae, soft tissue, discs, and ligaments extend from the base of the skull all the way down to the hips and are especially vulnerable to auto accidents, other high velocity impacts, and repetitive motion and occupational injuries. Spinal injuries are best treated by an orthopedic surgeon but neurosurgeons may also treat the spine, though they tend to concentrate more heavily on the cervical (neck) region rather than the lumbar (lower back) region. In New Orleans there are also an abundance of chiropractors, and, in less severe cases, they may treat the injured victim. Since a chiropractor cannot perform spinal surgery, they are generally limited to physical therapy including whirlpool, ice pack treatments, heat treatments, and electrical stimulation. There are a wide array of spinal injuries including:
(a) Whiplash or back and neck strain;
(b) Herniated Discs - Usually diagnosed by a cervical MRI (magnetic resonance imaging) or a Lumbar MRI. Herniated discs can also be diagnosed by a CAT scan (computed tomography) and/or a Cervical or Lumbar Myelogram. However, a myelogram is an invasive procedure and the MRI has consequently been the preferred diagnostic procedure since about 1987. The normal course of treatment, if the disk herniation is not emergent, is a conservative treatment program involving physical therapy (PT). If, after 6 to 12 weeks of PT, the pain does not resolve itself, a prudent doctor will order an MRI. If the MRI is "positive," which means there is a problem in the disc, the next step is epidural steroid injections, which consist of injecting a corti-steroid directly around the disc and joint in question. This may resolve the problem entirely or it may resolve it temporarily. If relief proves to be only temporary, it may be repeated after a month or so. If the pain is not tolerable, the orthopedist or neurosurgeon may discuss spine surgery as an option. Surgical options may range from a laminectomy to a removal of the disc and a fusion. Some fusions are done with natural bone while others are done with "instrumentations." If you have suffered a herniated disc, you should pursue necessary medical treatment and contact a New Orleans area personal injury attorney;
(c) Paraplegia or Quadraplegia - In truck, car, and other serious accidents, the trauma to the spine can result in a severe injury to the spinal cord. Depending upon the level of trauma, the result can be horrific and sometimes even permanently disabling. A victim may be paralyzed from the waist down or from the neck down, depending on the specific spinal injury involved. Most rollover accidents result in injuries to the C2/C3 or C3/C4 region of the cervical spinal vertebrae and result in full quadriplegia.
(3) Brain Injuries - Brain Injuries range from extremely noticeable to very minor; however, despite the severity of the brain injury, it can affect your ability to perform a variety of daily tasks. Memory, motor function, or other complicated neurological processes may be compromised or fully destroyed. If you believe you may have suffered a brain injury, you should contact a doctor as well as one of the experienced personal injury attorneys listed above.
(4) Burn Injuries - Burns can happen anytime, anywhere in New Orleans and they can change a person's life forever, leaving painful, difficult-to-mask scar tissue and, many times, requiring painful skin grafts. Burns can also leave the injury victim subject to long, excruciating rehabilitation and lifelong social stigma, resulting in a variety of damages. Perhaps even more critically, burns leave a person extremely vulnerable to infection and a variety of complications can occur following a severe burn. Burn injuries might occur in an industrial explosion, or due to another party's negligence or the negligence of their employees. Although a monetary award cannot heal the burns themselves, it can go a long way in terms of helping a burn victim and their family during their rehabilitation. Moreover, rising healthcare costs have made recovering from a traumatic burn injury more expensive and difficult for many families affected by the trauma. If you or a loved one has been affected by a severe burn injury and you believe you may have a claim against the party responsible, contact one of the attorneys listed for a consultation.
New Orleans personal injury attorneys and New Orleans wrongful death attorneys represent clients in claims involving a wide range of injuries and accidents and have the experience and skill necessary to get the job done right. Knowledge of a potential damage award is crucial to settling or successfully prosecuting any claim for personal injury or wrongful death and a Southeastern Louisiana personal injury lawyer or wrongful death lawyer's experience with these types of cases can help you assess your options early.
Other Damages Available to a Plaintiff who Survives an Injury
In addition to many of the types of damages mentioned above, when the Plaintiff is actually the person injured, he may recover damages for loss of enjoyment of life. These damages vary based on the severity of the injury and the Plaintiff's lifestyle. The damages compensate for the Plaintiff's inability to participate in or enjoy the pleasures of life. For example, someone who enjoys hunting, but loses his hands in an accident on an oil rig, might be able to recover for the loss of enjoyment of hunting (as well as many other activities). This is not the same as pain and suffering. A jury would determine how much the ability to hunt is worth to the Plaintiff. Call one of our New Orleans personal injury attorney's to learn your rights.
Louisiana does not allow the recovery of medical monitoring damages unless there is an accompanying physical injury. What this means is that someone exposed to a toxic substance, such as asbestos, due to someone else's negligence, cannot sue for the costs of repeated medical exams to verify that there are no injuries. However, if there is actually an injury, medical monitoring after that may be covered. Contact a New Orleans Personal Injury Attorney for more details.
Louisiana Punitive Damages - What Punitive Damages can be recovered in Louisiana?
Unfortunately for those injured, Louisiana only rarely allows punitive damages to be recovered. Punitive damages are a legal device, which allows a court to warn others not to do the same bad thing that has been done to you. Punitive damages do not compensate you for any specific harm. They are designed to be a type of penalty which acts as a deterrent. The money taken is given to the injured parties. One type of case where punitive damages are allowed are in bad faith insurance cases. For a discussion of Bad Faith insurance claims, click here. Below is the Louisiana Statute concerning punitive damages in insurance cases:
Payment and adjustment of claims, policies other than life and health and accident; personal vehicle damage claims; extension of time to respond to claims during emergency or disaster; penalties; arson-related claims suspension
A.(1) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.
(2) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, R.S. 22:1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant except that the commissioner may promulgate a rule for extending the time period for initiating a loss adjustment for damages arising from a presidentially declared emergency or disaster or a gubernatorially declared emergency or disaster up to an additional thirty days. Thereafter, only one additional extension of the period of time for initiating a loss adjustment may be allowed and must be approved by the Senate Committee on Insurance and the House Committee on Insurance, voting separately. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1973.
(4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.
B.(1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
(2) The period set herein for payment of losses resulting from fire and the penalty provisions for nonpayment within the period shall not apply where the loss from fire was arson related and the state fire marshal or other state or local investigative bodies have the loss under active arson investigation. The provisions relative to time of payment and penalties shall commence to run upon certification of the investigating authority that there is no evidence of arson or that there is insufficient evidence to warrant further proceedings.
(3) The provisions relative to suspension of payment due to arson shall not apply to a bona fide lender which holds a valid recorded mortgage on the property in question.
(4) Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant's loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable expenses or one thousand dollars whichever is greater together with reasonable attorneys fees for the collection of such expenses.
(5) When an insurance policy provides for the adjustment and settlement of first-party motor vehicle total losses on the basis of actual cash value or replacement with another of like kind and quality, and the insurer elects a cash settlement based on the actual cost to purchase a comparable motor vehicle, such costs shall be derived by using one of the following:
(a) A fair market value survey conducted using qualified retail automobile dealers in the local market area as resources. If there are no dealers in the local market area, the nearest reasonable market can be used.
(b) The retail cost as determined from a generally recognized used motor vehicle industry source; such as, an electronic database, if the valuation documents generated by the database are provided to the first-party claimant, or a guidebook that is available to the general public. If the insured demonstrates, by presenting two independent appraisals, based on measurable and discernable factors, including the vehicle's preloss condition, that the vehicle would have a higher cash value in the local market area than the value reflected in the source's database or the guidebook, the local market value shall be used in determining the actual cash value.
(c) A qualified expert appraiser selected and agreed upon by the insured and insurer. The appraiser shall produce a written nonbinding appraisal establishing the actual cash value of the vehicle's preloss condition.
(d) For the purposes of this Paragraph, local market area shall mean a reasonable distance surrounding the area where a motor vehicle is principally garaged, or the usual location of the vehicle covered by the policy.
C.(1) All claims brought by insureds, worker's compensation claimants, or third parties against an insurer shall be paid by check or draft of the insurer to the order of the claimant to whom payment of the claim is due pursuant to the policy provisions, or his attorney, or upon direction of such claimant to one specified; provided, however, that the check or draft
shall be made jointly to the claimant and the employer when the employer has advanced the claims payment to the claimant. Such check or draft shall be paid jointly until the amount of the advanced claims payment has been recovered by the employer.
(2) No insurer shall intentionally or unreasonably delay, for more than three calendar days, exclusive of Saturdays, Sundays,and legal holidays, after presentation for collection, the processing of any properly executed and endorsed check or draft issued in settlement of an insurance claim.
(3) Any insurer violating this Subsection shall pay the insured or claimant a penalty of two hundred dollars or fifteen percent of the face amount of the check or draft, whichever is greater.
D.(1) When making a payment incident to a claim, no insurer shall require that as a condition to such payment, repairs be made to a motor vehicle, including window glass repairs or replacement, in a particular place or shop or by a particular entity. Any insurer violating the provisions of this Subsection shall be fined not more than five hundred dollars for each offense.
(2) A violation of this Subsection shall constitute an additional ground, under R.S. 22:1554, for the commissioner to refuse to issue a license or to suspend or revoke a license issued to any agent, broker, or solicitor to sell insurance in this state.
Where can you find a New Orleans Personal Injury Attorney or Southeastern Louisiana Personal Injury Attorney near you?
Serving clients throughout Southeastern Louisiana, including Algiers, Alma, Bridge City, Chalmette, Destrehan, Elmwood, Gretna, Harahan, Harvey, Kenner, Luling, Meraux, Marrero, Metairie, Mt. Airy, New Orleans, River Ridge, South Kenner, Slidell, St. Benedict, St. James, St. Rose, Terrytown, Westwego, and other communities in Orleans Parish.
Contact one of the experienced Louisiana personal injury attorneys listed on this site for a free initial consultation.