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Caps on Personal Injury Damages

I recently read an article on entitled “How Do Damage Caps Work?” which discusses the various legislative attempts across the nation to place a cap on damages in certain noneconomic losses that result from a personal injury.

First, let me point out the difference between economic and noneconomic damages. Economic damages can be measured in dollars and cents. For instance, if a person is injured through the fault of another and incurs $20,000 in medical expenses, that $20,000 is a portion of the victim’s economic damages. If a person’s injury requires treatment in the future, then a calculation can be made for future medical expenses likely to be incurred. Such future medical expenses would also be part of the economic loss. If the person’s injury is such that the person has lost work and may experience a future loss of earning capacity, the time lost from work as well as the loss of future earning capacity are also economic damages.

At trial, a plaintiff may present a sum for medical expenses (already incurred and to be incurred) and a sum for lost income and loss of future earning capacity. When a lawyer asks the jury to award the client an amount for these types of losses, they are the economic losses.

Noneconomic damages, on the other hand, are unique and personal to each individual. While noneconomic damages are often lumped under the heading “pain and suffering”, it includes consideration of many more items. For instance, in a jury’s deliberation of the extent of an injury, the following items are considered: pain, discomfort, suffering, and disability and disfigurement. There are additional items that are difficult to value such as: loss of love, care, and affection as well as a general loss of enjoyment of life. Loss of enjoyment of life is the loss of one’s ability to participate in life’s activities with the quality and extent normally enjoyed before the injury. With a heading like pain and suffering, it is easy to see why most of us look cautiously and suspiciously at plaintiffs seeking significant noneconomic damages.

Remember what I said though, noneconomic damages are personal. Two people can have the same injury and the impact of that injury may be quite different for each person. An active outdoors individual will suffer a greater impact from a broken leg and someone who enjoys reading, for instance, as past time. A lawyer with a broken leg can probably go to work every day but a construction worker may not be so fortunate.

Many lawyers, including me, argue that because there is a difference from one person to the next caps on noneconomic damages are unfair and irrational. Nonetheless, legislatures across the country have capped noneconomic damages, usually in the amount of $250,000-$350,000. Such caps allow plaintiffs with modest to moderately severe injuries to recover the full amount of their noneconomic damages award. A person with catastrophic injuries, on the other hand, may not be permitted to keep what a jury deems to be a full measure of the noneconomic damages and is stuck, instead, with the artificial caps.

In Arizona we are fortunate to have a provision in our state Constitution that prohibits our legislators from taking away a right to recover a full measure of noneconomic damages. Still, Arizona’s legislators continue trying to regulate a plaintiff’s right to recover full damages, though every legislative effort meets with strong resistance from trial lawyers and others across the state.

At Clarke Law Offices, we look forward to an opportunity to fight for you or a loved one and recover for you the full measure of your damages, economic as well as noneconomic  If you have been in any type of accident and have been injured, call us for a free consultation..

Lawsuits – Exercising an Important Right

As is always the case, I hope none of you ever finds yourself a party to a lawsuit. Whether you are the plaintiff or defendant, whether you win or lose litigation is unpleasant, disruptive, and often disappointing. Filing a lawsuit should always be the last resort when trying to resolve a dispute. That’s true whether the dispute is over personal injuries you sustained in a car accident or whether your neighbor is encroaching onto your property with his recently erected fence.

Nonetheless, the right to file a lawsuit (or seek redress through the courts) is an important and necessary tool to seek justice when one has been wronged. Our law states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The amount in controversy requirement has changed considerably over the years but the right to a trial by jury is preserved. This is important because when it comes to determining the legal rights as between individuals, an individual and a corporation, or an individual and governmental entity, there is no better source than the jury, a collection of everyday people who bring their common sense, experience, intelligence, and a willingness to follow the law to bear on the facts before them.

Regrettably, when it comes to personal injury, our society has become jaundiced, cold, and indifferent. My favorite band, The Eagles, criticize personal injury lawsuits and personal injury lawyers in their song “Get over It.” The lyrics go like this: “You say you haven’t been the same since you had your little crash but you might feel better if they gave you some cash. The more I think about it, ole Billy (William Shakespeare-King Henry VI, Part 2, Act IV, Scene II) was right; “let’s kill all the lawyers, kill them tonight.”

The problem with that mind-set is that without lawyers and without access to the courtroom, a person who is injured, whether in a car accident, a fall at a department store, or because of a medical procedure gone wrong, would not be able to obtain redress, albeit in the form of monetary compensation for the injuries. Let’s face it, a personal injury can be devastating, life altering, and permanent. Our tort system says that if your personal injuries are the result of the wrongful conduct of another, you are entitled to compensation from that other (person or entity). In today’s world, that person or entity is usually insured and the insurance companies would have no incentive to pay a valid claim if the injured person did not have access to a lawyer and a court of law.

To be sure, there are frivolous lawsuits. The good people of Maricopa County who are chosen to sit as jurors show little difficulty dispatching frivolous claims if such claims get past the pretrial motions. All too often, our friends on the defensive side of personal injury lawsuits, most notably the insurance companies, perpetuate a myth that frivolousness is the rule and not the exception. In that regard, I suppose a frivolous lawsuit is like an activist judge. If the judge rules against you, he or she must be an activist. If the plaintiff loses his or her lawsuit, it must have been frivolous.

If you were injured in an accident, at the fault of another party, you are entitled to monetary compensation to pay for medical bills and lost wages at a minimum. This is the very reason it is mandatory for drivers in the State of Arizona to have insurance and the very reason trucking companies and construction companies and most companies have insurance. Don’t be afraid to make your claim if you have one. If you were legitimately injured by another party, this is your right.

For a variety of reasons, many people find lawsuits offensive and are reluctant to consider a lawsuit even to protect their own rights. While I would never quarrel with one’s convictions in this regard, at Clarke Law Offices, my conviction is to prosecute our injured clients’ claims with vigor and to present those claims to a jury when necessary.

Overview of a Personal Injury Claim in Arizona

Once you have been injured, whether in a car crash, from a fall at the grocery store, or any other unfortunate mishap, you are entitled to recover for your personal injuries from whomever or whatever caused your injuries.  Most lawyers handle these cases on a contingency-fee basis.  This is important because many lawyers advertise a so-called “no fee guarantee”.  The fact is a contingency-fee is just that; it means the injury lawyer gets paid only if you recover for your injuries.  The so-called “no fee guarantee” is just another way of saying “I will not get paid unless I recover for you.”  The contingency fee still assures you of access to the courthouse and is the most common attorney-client agreement in personal injury matters.


Although your personal injury lawyer only gets paid if there is a recovery, you will still be giving up a share of the recovery to compensate the lawyer.  You will also be paying any costs the lawyer incurred to, for instance, obtain a police report or medical records on your behalf.  Your lawyer may have to hire an investigator or expert witness to help prove your case.  Those items are costs and are in addition to the contingency fee.


If your injuries are minor, you may feel you cannot justify giving part of your recovery to a lawyer and may believe you can handle the matter on your own.  That may be true in cases of clear liability (such as-you are rear-ended while at a stop light with both your brake lights and the stop light working correctly) and you want to recover only a medical bill.  If your case is any more involved than that, you likely will benefit from a personal injury lawyer’s services and your ultimate recovery may more than justify the contingency fee your lawyer will earn.


Your case goes through many steps from the time of your injury until your potential monetary recovery.  In fact, you may have to present your case to a jury before the insurance company for the person or entity that caused your injuries will compensate you for your losses.  Each step along the way lays the groundwork for the next step and a misstep could be costly.


Although your claim will be against a person or entity, you will be seeking compensation from the insurance carrier for that person or entity.  Your dealings will likely be with a claims adjuster who has no interest in your case and is employed by an insurance company with virtually unlimited resources.  While the claims adjuster owes a duty to the insured person or entity, the adjuster’s goal is to pay as little as possible and to move your claim file off his or her desk as quickly as possible.  As your lawyer, I will have an interest in you and your case and will be committed to obtaining as large a recovery as possible and will go the entire distance (to a jury trial) if necessary to get you your fair recovery.


From start (telling the insurance company you have a claim to bring) to finish (getting your recovery), there is much to be done.  First and foremost, you must get the treatment you need.  If treatment is not readily available, I will help you secure competent and appropriate treatment.  If you missed work, you will need to gather the evidence necessary to support that lost time.  That can be problematic if you are self-employed or work on a commission basis.  Once you have completed treating for your injuries, you will have to collect all your medical records and your medical bills.  If you have other losses (such as loss of value to your vehicle-even after it is been repaired) you will need to provide evidence of such losses.  Not everyone completely heals from personal injuries.  You may need a report from your treating physician to outline any lingering problems, including an estimate for future cost of care.  The above necessary actions are all things that your personal injury lawyer does so you can focus on healing and getting back to your regular life.


Once all the above information is obtained, you are probably ready to make a demand for settlement.  This is more involved than simply handing the adjuster your records, bills, and other documented losses.  The adjuster needs to know why the insured should have to pay for your losses and why you should be paid anything in excess of your actual expenses.  The demand letter I send on behalf of my clients analyzes the liability part of the case and sets forth the specific details justifying your demand.  The adjuster may then make an offer to settle and from that point, you will negotiate with the adjuster until you reach a resolution or file suit.  No matter what you demand, the adjuster will likely offer a small percentage of that demand unless there is an issue with limits of insurance coverage.  For instance, you may have a catastrophic loss but the person who caused your loss may have a modest insurance policy.  Keep in mind that the minimum required automobile liability insurance coverage in Arizona is $15,000.  The adjuster will want you to settle your claims against the insured in exchange for that modest insurance payment.  If the adjuster is unwilling to pay the minimum amount you will accept, and the insurance policy has a higher limit than the settlement offered, your next option is to file a lawsuit and go to trial if necessary.  As your personal injury lawyer, my team and I will handle all those matters.


While no one is obligated to retain a personal injury lawyer, the issues that must be considered (from securing appropriate medical care to confirming adequate insurance limits to reaching a resolution) strongly suggest that you will benefit from our services.


I have been a Phoenix personal injury lawyer for over 35 years and my firm, Clarke Law Offices, handles many types of personal injury cases.   For cases of clear liability and minor injuries, including third-party liability (where you make a claim against the insurance company for the person or entity causing your injuries) and uninsured motorist claims (where you must use the coverage available through your own insurance company because the other driver was not insured), I charge a flat 25% fee up to the filing of a lawsuit.  If we must file suit, the fees in such cases will never exceed 30%.  Remember, there may be costs in addition to the fees.


We hope 2013 is prosperous and rewarding and we truly hope your life is not interrupted by personal injuries.  If you are not so fortunate, just remember, we are here if you need us.

Call us today for a free consultation (602) 952-3232

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