Victims of a truck accident can suffer significant physical, emotional, and financial harm. Because of the violence involved in a truck accident collision, damages in truck accident cases are frequently higher than in other cases. Many truck accidents result in catastrophic injuries that necessitate long-term medical treatment as well as extended (or permanent) time away from work.
In the aftermath of such a tragedy, you may be wondering how you will raise the funds required to cover these unexpected expenses. Filing a personal injury lawsuit with a qualified attorney on your side greatly improves your chances of recovering the funds you deserve to receive the treatment you require. Learn about the different types of damages that you may be able to recover after a truck accident.
You have no control over what truck drivers do. You had no control over the truck that ran into you. Take back control by hiring a truck accident lawyer to go after the compensation you are owed. You can reclaim control of your life after a truck accident. The first step on the road to recovery is to contact a Dallas truck accident attorney who will protect your rights, seek the compensation you deserve, and ultimately help guide you through your case with the experience, expertise, and desire for justice that your case deserves.
Call the Law Office of Doug Goyen at (972) 599 4100. We will start working on your case today.
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DAMAGES IN TRUCK ACCIDENT CASES WITH INJURIES
If you break it, you have to pay for it. This age-old common sense rule also applies in personal injury cases. If you have been injured as a result of someone else’s negligence, you have damages, and the law allows you to seek compensation from those who caused the damages in truck accident cases. On behalf of our clients, the Law Office of Doug Goyen truck accident attorneys use expertise, powerful representation, and a strong desire for justice. We put maximum pressure on the insurance company for truck accident injuries.
The negligent truck driver and their trucking company must pay for the damages that Texas law allows you to recover in a personal injury case. Personal injury attorneys use the term “damages” to describe how you were personally harmed or financially harmed in your personal injury or wrongful death case. If you have one or more of the following types of damage as a result of your injuries, Texas law allows you to recover money to compensate you for the damage and injury caused by the other party’s negligent conduct. The person or company who caused the harm can be forced to pay if proof of the damage or injury is provided.
The damages most often available in trucking cases are 1) actual damages, 2) wrongful death damages, and sometimes 3) exemplary or punitive damages.
The term “actual damages” refers to both economic and noneconomic losses. They are also known as compensatory damages and are awarded to correct a mistake or compensate for an injury. Robertson Cty. v. Wymola, 17 S.W.3d 334, 343-44 (Tex.App.-Austin 2000, pet. denied); City of Dallas v. Cox, 793 S.W.2d 701, 733 (Tex.App.-Dallas 1990, no writ); King v. Acker, 725 S.W.2d 750, 756 (Tex.App.-Houston [1st Dist.] 1987, no writ).
Actual damages can be classified as either economic or noneconomic. See Tex. Civ. Prac. & Rem Code section 41.001(8).
The amount of these damages is determined by the jury in jury trials. See 41.008(a).
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ECONOMIC DAMAGES IN TRUCK ACCIDENT CASES
ECONOMIC DAMAGES: Economic Damages are compensation for actual economic or pecuniary loss (losses measured in money). See Tex. Civ. Prac. & Rem. Code section 41.001(4).
Economic damages recoverable in truck accident personal injury cases frequently include the following types of damages:
Past and future medical bills: The amount of medical bills required to treat your injury in the past and in the future.
Past Medical Expenses: In order to recover in court for past medical expenses, a person must show the amount of the expense, the necessity of the treatment, and the reasonableness of the expense. This can be demonstrated by presenting the actual bill, having the plaintiff testify to the amount, and having a representative from the medical facility testify that this was their charge and that it was reasonable. In some cases, the medical facility must also produce a doctor to testify that the treatment was required for the injury. Blankenship v Mirick, 984 S.W.2d 771 (Tex.App.–Waco 1999, pet. denied).
Future Medical Expenses: Texas applies a “reasonable medical probability” rule to future medical expenses. This is something that will have to be decided by a jury. Although “precise” evidence is not required, courts prefer “medical testimony” to demonstrate future medical expenses. Whole Foods Mkt. Southwest, L.P. v. Tijerina, 979 S.W.2d 768 (Tex.App.–Houston [14th Dist.] 1998, pet. denied).
Courts and juries may award future medical expenses based on the nature of the injuries, the medical care provided prior to the trial, and the injured person’s condition at the time of trial.
Past and future lost earning capacity: The amount of money you could have earned if you had not been injured.
Earning capacity loss is distinct from lost earnings or income loss. The diminished ability to earn a living is referred to as loss of earning capacity. Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex.App.-Dallas 2012); Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 491 (Tex.App.-Amarillo 2006, no pet.); Gilbreath v. Hathaway 108 S.W.3d 365, 366-67 (Tex.App.-Beaumont 2003, pet. denied); Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 435 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
Earnings loss is the loss of actual income as a result of an inability to perform a specific job. Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex.App.-Amarillo 2002, pet. denied).
Loss of earning capacity, not loss of earnings, is the proper measure of damages. Dallas Ry. & Terminal Co. v. Guthrie, 210 S.W.2d 550, 552 (Tex.1948).
Even if you are unemployed, you can make up for lost earning capacity. Big Bird, 365 S.W.3d at 179; Brazoria Cty. v. Davenport, 780 S.W.2d 827, 832 (Tex. App-Houston [1st Dist.] 1989 no writ); North Houston Pole Line Corp. v. McAllister, 667 S.W.2d 829, 833 (Tex. App-Houston [14th Dist.] 1983, no writ); see General Motors Corp. v. Burry, 203 S.W.3d 514, 554 (Tex.App.-Fort Worth 2006, pet. denied)(P who had been out of the workforce for almost 10 years was allowed to recover for lost earning capacity).
Specific proof of earnings loss merely provides evidence on the ultimate issue of loss of earning capacity. Southwestern Bell Te. Co. v. Sims, 615 S.W.2d 858, 864 (Tex.App.-Houston [1st Dist] 1981, no writ).
Loss of services: If a husband or wife is unable to perform their normal household duties as a result of the injury, they are entitled to compensation.
Texas law holds that household services are those that a husband or wife performs around the house and in caring for the family. Dallas Ry. & Terminal Co. v. Sutherland, 27 S.W.2d 830 (Tex.Civ.App.—El Paso 1930, writ dism’d w.o.j.).
You can present evidence of how much it would cost to replace these services in Texas courts, but this does not limit your recovery. Armellini Express Lines, Inc. v. Ansley, 605 S.W.2d 297, 312 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.).
You are not required to request a specific number if you do not want to, as a jury can determine the value of this based on their own personal experience. Arando v. Higgins, 220 S.W.2d 291 (Tex.Civ.App—El Paso 1949, writ ref’d n.r.e.).
A household services claim is distinct from a loss of consortium claim. Each spouse is entitled to the other’s past and future services. The injured spouse’s contributory or comparative negligence is deducted from the recovery (if any). Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978); Reed Tool Co. v. Copelin, 610 S.W.2d 736 (Tex. 1980).
If you hire someone to replace what has been lost, you must also show that the cost was reasonable. Craver-Hicks Bldg. Maint., Inc. v. Vanlandingham, 444 S.W.2d 663, 670 (Tex.Civ.App.—El Paso 1969, no writ).
However, even if you don’t have any bills, or if you didn’t actually hire anyone to perform the services that the spouse normally performed, you can still recover, and a jury can still award money if evidence is presented and the evidence/claim is believed by the jury. Arando v. Higgins, 220 S.W.2d 291 (Tex.Civ.App.—El Paso 1949, writ ref’d n.r.e.).
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Property damage: Property damage, such as damage to your car, computer, phone, or glasses, is recoverable in an accident case.
In addition to the cost to repair a vehicle, these other areas of damage are also common property damages in truck accident cases:
Loss of use of your property: For example, rental car bills, or if you used your property or vehicle in your business and lost some of your income while the vehicle could not be driven, are recoverable in a car wreck or accident case.
Storage: If your vehicle was towed from the scene and stored in a storage yard, you will be charged for that time. This is recoverable in the event of a car accident or a motor vehicle wreck.
Total loss of property: If your vehicle was destroyed and cannot be repaired, you are entitled to the value of the vehicle immediately prior to the accident. Basically, you are the seller, and the insurance company is the buyer – do some research on the value of the vehicle so you can be armed with some evidence.
NOTE ON TOTAL LOSS VALUE: My advice on getting the best total loss offer on your vehicle is to look up the value of your vehicle on three sources – I suggest these three sources 1) KBB.com, 2) NADA.com, and 3) Look for actual vehicles for sale in your area on Autotrader.com or Cars.com, etc., and get an average value of your same year, make, model, package, mileage, and condition prior to the accident for your vehicle.
Compare all three sources with each other to see which gives the highest price – you use that source and act like you never heard of the other two. If autos for sale in the area (on Autotrader.com or Cars.com) are higher priced on average than KBB.com or NADA.com then tell the insurance company that you have to actually buy a replacement, and show them the evidence of what they actually cost in your area – you cant buy a car from KBB or NADA. On the other hand, if KBB.com or NADA.com gives the highest value, then send a screenshot to the adjuster of whichever one is the highest as evidence of the value of your vehicle.
Do not give the insurance company all three sources – you will know what the other two sources say, but if you show them the other two sources – they will pick the lowest and say you did the research for them. Act like you never heard of the other two sources at the start of the negotiation.
The insurance company is going to do the exact same thing, but they will choose the lowest source and act like they never heard of the other two (believe me, they know – I worked for insurance companies for years – it is a negotiation game). You likely will not get the highest value, but you definitely do not want to accept the lowest value that the insurance company will try to offer. Use the highest of those three sources as your starting point – and give it to the insurance company as your evidence of the value of your vehicle. They will do the same but from the low end. You will end up meeting somewhere in the middle.
Diminished value of the property: If your vehicle has been repaired but is now worth less money as a result of the accident, you are entitled to compensation for the diminished value of your vehicle.
Property damage insurance available after a truck accident can include the following types of insurance:
1) Liability coverage. If you drive a car in Texas, you must have this type of insurance. Section 601.051 of the Texas Transportation Code is the state’s financial responsibility law. This coverage is required to protect others in the event that your carelessness causes damage or injury to someone or something else.
2) Uninsured Motorist Property Damage Coverage. If you were injured in a car accident, you may be able to use your Uninsured Motorist Coverage to pay for your claim. In this case, your insurance company assumes the uninsured driver’s insurance, which they should have had.
3) Collision Coverage. A deductible for vehicle repair is usually included in collision insurance. This insurance covers any collision-related incident, regardless of fault; you can use it to repair a vehicle that has been damaged as a result of the collision.
4) Rental Reimbursement Insurance. You have a few rental options. You can use your own insurance policy’s rental reimbursement coverage to pay for a rental car. If liability is cleared with the other driver’s insurance, they will frequently set up a direct bill for the rental car through the other driver’s liability insurance.
5) Towing Coverage. If you have towing coverage on your own policy, you can use it to get reimbursed for the towing fee. You can submit the towing bill to the other driver’s insurance if the other driver’s liability insurance has accepted liability.
6) Comprehensive Coverage. Your comprehensive insurance policy protects you against theft, vandalism, weather damage, hail, and other forms of vehicle damage. For comprehensive insurance claims, you are usually required to pay a deductible. (NOTE: This is property damage insurance, but is not used for accidents with other vehicles – it is used for non-accident damage done to vehicles).
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NONECONOMIC DAMAGES IN TRUCK ACCIDENT CASES
NONECONOMIC DAMAGES: Noneconomic damages are awarded to compensate for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses other than exemplary damages.
Noneconomic damages recoverable in truck accident personal injury cases frequently include the following types of damages:
Pain and suffering past and future: Compensation is allowed for past and future pain and suffering based on a jury’s common sense, knowledge, and sense of justice. In terms of settling a claim, determining the value of pain and suffering is done by imagining what a jury – who does not know anyone involved – will think the value is.
Pain and suffering can be compensated. Physical pain is a proper item of recovery, and the law recognizes that its monetary value can only be approximated, with the jury arriving at some fair compensation based on their common knowledge and sense of justice. Pipgras v. Hart, 832 S.W.2d 360, (Tex. App.-Fort Worth 1992, writ denied).
There is no fixed formula. The amount of damages that would reasonably compensate for “pain” is not and cannot be determined by a set formula, but is instead left to the jury’s discretion. Loyd Elec. Co. v. Millett, 767 S.W.2d 476 (Tex. App.-San Antonio 1989, no writ); Ramirez v. Fifth Club, Inc., 144 S.W.3d 574 (Tex. App.-Austin 2004, pet. filed); Rehab. Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151 (Tex. App.-Austin 1998, no pet.); Green v. Meadows, 527 S.W.2d 496 (Tex. Civ. App.-Houston [1st Dist.] 1975, writ ref’d n.r.e.).
Accepted Evidence to Prove Pain and Suffering. Evidence of (1) the severity of the injury, (2) post-trauma experience at the scene of the accident, (3) painful and frightening emergency room treatment, (4) fear of dying, (5) pain and loss of sight following surgery, and (6) loss of self-esteem leading to a reclusive nature was sufficient to support a finding of damages for “physical pain and mental anguish.” Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486 (Tex. App.-Houston [14th Dist.] 1989, no writ); Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909 (Tex. App.-Houston [1st Dist.] 1988, writ denied).
Pain Isn’t Proved by Injury Alone. The mere presence of an injury does not establish compensable pain and suffering. Biggs v. GSC Enters., Inc., 8 S.W.3d 765 (Tex. App.-Fort Worth 1999, no pet.).
Proof of future pain and suffering is required. In terms of future pain and suffering, the evidence is legally sufficient to support a future pain and suffering award because the accident victim’s back continued to hurt and he testified that he still suffered from headaches. Durham Transp., Inc. v. Valero, 897 S.W.2d 404 (Tex. App.-Corpus Christi 1995, writ denied)
Uncontested Proof of Pain and Suffering: If pain and suffering are proven and uncontroverted at trial, the jury must award pain and suffering compensation. Jurors may not award “zero” dollars for pain and suffering if the evidence demonstrates that there is pain and suffering and that it was caused by the defendant’s negligence. “As a general rule, it is the jury’s prerogative to fix damages, but they have no authority to completely disregard the undisputed facts and arbitrarily fix an amount that is neither authorized nor supported by the evidence.” Thomas v. Oil & Gas Bldg., Inc., 582 S.W.2d 873, 881 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.); see Del Carmen Alarcon v. Circe, 704 S.W.2d 520, 521 (Tex. App.—Corpus Christi 1986, no writ).
In particular, the jury cannot deny any recovery for past physical pain based on uncontroverted evidence of injury. See Monroe v. Grider, 884 S.W.2d 811, 820 (Tex. App.—Dallas 1994, writ denied); see also Golden Eagle Archery, 116 S.W.3d at 775 (“[A] verdict awarding no damages for pain and suffering should [not] be upheld on appeal if there is objective, undisputed evidence of a significant injury and the jury could not have compensated the injured party in some other category of damages.”).
However, where the evidence of pain is conflicting, scant, or more subjective than objective, a jury’s finding of zero damages is not contrary to the great weight and preponderance of the evidence. Gonzalez v. Wal-Mart Stores, Inc., 143 S.W.3d 118, 123 (Tex. App.—San Antonio 2004, no pet.); Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex. App.—Dallas 1988, no writ).
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Past and future mental anguish: How your physical injury has caused significant mental anguish, to the point where it is more than disappointment, resentment, embarrassment, or anger, and how it will continue to do so in the future.
Texas courts define mental anguish as a high level of mental pain/anguish that is greater than disappointment, resentment, embarrassment, or anger. Grief, severe disappointment, public humiliation, despair, shame, wounded pride, or indignation are more akin to what Texas courts regard as “mental anguish.” See Parkway Co. v. Woodruff, 901 S.W.2d 434, 442 (Tex.1995).
A $1,000,000.00 verdict for mental anguish caused by insomnia, ulcers, depression, post-traumatic stress disorder, and fear and anxiety was upheld by one court. Homeowners in Woodruff had filed a lawsuit against a developer for damages caused by a flood in their home. The evidence did not meet the standard because the plaintiffs’ testimony was limited to mentioning the presence of “mere emotions”: “I was hot,” “It was just upsetting,” and “I was just upset.” Woodruff, 901 S.W.2d 434.
Texas courts have further defined and clarified what is considered recoverable mental anguish in the following cases:
However, the plaintiff must demonstrate that the defendant’s actions caused a quantifiable amount of mental pain and distress. To demonstrate such mental pain and distress, the presence of grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation may be used. Dillard Dep’t Stores v. Silva, 106 S.W.3d 789 (Tex. App.-Texarkana 2003), aff’d in part, modified in part, per curiam, 148 S.W.3d 370 (Tex. 2004).
Extreme nervousness, inability to sleep, and impaired peace of mind can all be symptoms of mental anguish. Ortiz v. Furr’s Supermarkets, 26 S.W.3d 646 (Tex. App.-El Paso 2000, no pet.); Underwriters Life Ins. Co. v. Cobb, 746 S.W.2d 810 (Tex. App.-Corpus Christi 1988, no writ).
A Texas Court of Appeals defined “mental anguish” as a heightened emotional injury that goes beyond ordinary grief; it includes acute and poignant mental suffering, a high degree of mental suffering, or intense pain of mind and body. The court also stated that damages for mental anguish should be awarded for actual mental injuries rather than for mere fear, anger, or sorrow. Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185 (Tex. 2000) (per curiam); Cigna Healthcare of Tex., Inc. v. Pybas, 127 S.W.3d 400 (Tex. App.-Dallas 2004, pet. granted, judgm’t vacated w.r.m.); Larrumbide v. Doctors Health Facility, 734 S.W.2d 685 (Tex. App.-Dallas 1987, writ denied) (child died five years before, and parents were recovering from grief).
In a case involving disfigurement damages, an appellate court defined mental anguish as “a relatively high degree of mental pain and distress.” It is “much more than disappointment, rage, resentment, or embarrassment.” Grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation are all included. Hopkins County Hosp. Dist. v. Allen, 760 S.W.2d 341 (Tex. App.-Texarkana 1988, no writ) (emphasis added) (citing Teledyne Exploration Co. v. Klotz, 694 S.W.2d 109 (Tex. App.-Corpus Christi 1985, writ ref’d n.r.e.).
Fear and anxiety, which resulted in post-traumatic stress disorder, depression, ulcers, and sleeplessness, were enough to justify a $1,000,000 actual damage award. Haryanto v. Saeed, 860 S.W.2d 913 (Tex. App.-Houston [14th Dist.] 1993, writ denied).
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Loss of a body member: If you lost an arm, leg, hearing, or mental function or capacity as a result of the accident or injury, this injury may need to be claimed separately from physical impairment or disfigurement in order to recover damages for the harm caused.
Texas courts have allowed recovery for the element of loss of a body part in some cases. To avoid appeal issues, avoid requesting overlapping damages, such as requesting loss of a body part but only providing evidence of how this causes “physical impairment.” If you receive compensation for physical impairment and then for loss of a body part, the Defendant (or his insurance company) may be able to have the award reversed on appeal because you received the same money under two different names (double recovery).
Teeth Loss: The Texas Supreme Court has recognized tooth loss as a separate element of damage. Houston Transit Co. v. Felder, 208 S.W.2d 880 (Tex. 1948).
Hearing Loss: A separate element of damage for hearing loss was approved by the Tyler court of appeals. City of Houston v. Riggins, 568 S.W.2d 188 (Tex.Civ.App.—Tyler 1978, writ ref’d n.r.e.).
Loss of Mental and Intellectual Function: (Cases are listed below, but only if the Plaintiff’s brain damage is severe enough that he or she can no longer perceive mental anguish or pain and suffering):
In a Dallas case, Defendant questioned whether Plaintiff could even feel pain or experience mental anguish – because his brain damage had left him in such a state that it was questioned whether the injured Plaintiff could even perceive pain or mental anguish. The court determined that the loss of mental and intellectual function that prevents such “appreciation” is a separate element of damages in and of itself. Western Union Tel. Co. v. Tweed, 138 S.W. 1155 (Tex.Civ.App—Dallas 1911), rev’d on other grounds, 166 S.W. 696 (Tex.Civ.App—Dallas 1911). (Tex. 1914). Instead of mental suffering, loss of mental function (mind destruction) is a component of damages.
However, in a case where a person did suffer brain damage but not to the extent that they were unable to perceive mental anguish or pain and suffering, the courts have ruled that submitting “loss of mental and intellectual function” is improper, because that part of the damage (loss of mental and intellectual function) can be properly included in the pain and suffering and mental anguish. Johnson v. King, 821 S.W.2d 425 (Tex.App.—Fort Worth 1991, writ denied).
Loss of consortium: If the injury is severe enough that you no longer enjoy the companionship of your family members, you are entitled to compensation for the harm done to your family relationships.
Loss of Consortium is a derivative claim for the injury or death of a family member that results in damages for the other family member claiming loss of consortium. Other types of damages resulting from the death or injury of a close family member include Wrongful Death, Survival Causes of Action, Loss of Inheritance, Loss of Services Claims, and Bystander Claims.
Spouses can recover for loss of consortium when the other spouse’s injury was caused by another party’s negligence or intentional tort. Reed Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex.1980)(intentional tort); Wittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978)(negligence).
Spousal loss of consortium refers to the emotional and intangible aspects of a marriage, such as affection, solace, comfort, companionship, society, assistance, and sexual relations. Whittlesey, 572 S.W.2d at 666; Reeder v. Allport, 218 S.W.3d 817, 819 (Tex.App.-Beaumont 2007, no pet.).
This is a completely separate case from the injured spouse’s claim. Whittlesey v. Miller, 572 S.W.2d 665 (Tex 1978).
A jury did not need expert testimony to determine the value of loss, love, affection, companionship, and society. Seale v. Winn Exploration Co., 732 S.W.2d 667 (Tex.App.—Corpus Christi 1987, writ denied).
Child’s loss of consortium due to parent’s injury: Loss of parental love, affection, protection, emotional support, services, companionship, care, and society are all examples of damages suffered by a child. All factors are considered, including the severity of the parent’s injury and its impact on the parent-child relationship, the child’s age, the nature of the child’s relationship with the parent, the child’s emotional and physical characteristics, and the availability of other consortium-giving relationships for that child. Reagan v Vaughn, 804 S.W.2d 463, 467 (Tex. 1990).
When a parent suffers a serious, permanent, and disabling injury or death, the child may be able to recover from their loss of consortium claim. Reagan, 804 S.W.2d at 467 (injury to parent); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 551 (Tex.1985)(death of a parent).
Parental loss of consortium due to injury of a child is not allowed (only if a child dies): If the child does not die, there is no recovery for the parents, regardless of the severity of the child’s injury. In 2003, the Texas Supreme Court ruled that if a child survives an injury, a parent cannot recover for loss of consortium. So, even if a child is in a coma, has severe brain damage, or has been severely altered by paralysis or another serious injury, our Texas Supreme Court has ruled that a parent cannot sue for loss of consortium in Texas. Roberts v. Williamson, 111 S.W.3d 113, 120 (Tex. 2003).
Prior to 2003, the Texas Supreme Court ruled that a claim for a parent’s loss of companionship, society, affection, and love was valid (loss of consortium). Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983)(Although the case involved the death of a child, the decision stated that the court-approved loss of consortium cases in non-death situations as well). Hall v. Birchfield, 718 S.W.2d 313 (Tex.App.—Texarkana 1986), rev’d on other grounds, 747 S.W.2d 361 (Tex. 1987)(non-death injury to a child).
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Physical impairment in the past and future: How you have been physically impaired in the past as a result of your injury, and how you will be physically impaired in the future. Texas’ version of “loss of enjoyment of life” is physical impairment.
Some Texas courts have equated physical impairment with “loss of enjoyment of life.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 766 (Tex. 2003).
Physical impairment damages cover a person’s inability to do things they used to enjoy before their injury, both outside of work (which is covered by lost earning capacity) and outside of living pain-free. The inability to participate in sports, go for walks, read literature for pleasure, mow their own lawn, or engage in other leisure activities that do not earn a living.
Physical impairment is defined as an impairment that extends beyond the loss of earning capacity or mere pain and suffering as a separate element of damages. Jackson v. Golden Eagle Archery, Inc., 143 S.W.3d 477 (Tex. App.-Beaumont 2004, no pet.); Blankenship v. Mirick, 984 S.W.2d 771 (Tex. App.-Waco 1999, pet. denied); Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909 (Tex. App.-Houston [1st Dist] 1988, writ denied).
A physical impairment may occur that has no bearing on economic loss and does not necessarily affect the injured party’s ability to work and earn a living. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App.-Tyler 2003, pet. denied); Texas Farm Products Co. v. Leva, 535 S.W.2d 953 (Tex. Civ. App.-Tyler 1976, no writ).
Disfigurement in the past and in the future: How the injury physically disfigured you in the past and how it will disfigure you in the future.
Texas Definition of Disfigurement: Disfigurement is defined by Texas courts as an “impairment of beauty, symmetry, or appearance; that which renders unsightly or deforms in some way.” Plaintiff “Allen” gave birth by Cesarean section on May 3, 1984, according to the facts of the case. The doctors who delivered her failed to remove a sponge from her abdomen. The sponge had to be removed through one long vertical incision in her abdomen, which left a scar. Allen and her husband filed a professional negligence lawsuit against doctors Dhawal Ram and Somjai Tris, as well as the Hopkins County Hospital District. The jury ruled in favor of the Allens, awarding $25,000 in disfigurement, $50,000 in future disfigurement, $20,000 in pain and mental anguish, $50,000 in future pain and mental anguish, $10,000 in physical impairment, and $6000 in past medical expenses. Hopkins County Hosp. Dist. v Allen, 760 S.W.2d 341 (Tex.App.—Texarkana 1988, no writ).
The Hospital District (Defendant) contended that future disfigurement damages are recoverable only if there is a reasonable likelihood of additional scarring or deforming. It also argued that Allen should be denied future disfigurement compensation because she failed to present evidence of future scarring or deformation caused by sponge removal. It contended that by allowing recovery for future mental anguish and disfigurement, Allen is effectively recovering twice for the same injury.
The Court ruled that proof of additional scarring or deformation is not required to recover damages for future disfigurement, though it may be considered in determining the amount of damages. The court determined that compensation for future disfigurement includes compensation for the future embarrassment caused by the disfigurement. Plaintiffs who feel ugly, hide their disfigurement under their clothes and gloves, and avoid shaking hands are embarrassed by their scars and may be entitled to future disfigurement damages if there is no evidence of further scarring or deformation.
It is distinct from pain, suffering, and mental anguish in terms of recovering from disfigurement caused by an accident.
You can also sue for future disfigurement caused by surgical scars. Personal injuries were sustained when the mast of a sailboat operated by Kenneth Schulz on Lake Travis, on which Eric Schulz was a passenger, collided with a powerline owned by PEC and engineered and maintained by LCRA. Pedernales Electric Cooperative v. Schultz, 583 S.W.2d 882 (Tex.Civ.App.—Waco 1979, writ ref’d n.r.e.).
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Bystander Injury – Emotional/mental trauma: If a closely related person actually witnesses in some way as it happens, such as sees a loved one seriously injured or killed, they are entitled to recover as a bystander for the emotional or mental trauma caused by witnessing such an event.
Bystander damages are recoverable if the emotional shock injury was from conduct that from a reasonable person’s standpoint could have been a foreseen result of that negligent conduct. There is no requirement for the person making the bystander claim to have suffered a physical injury. Typically, family members who witnessed another family member as they were injured or killed are the only ones who are allowed to recover in Texas. St. Elizabeth Hospital v Garrard, 730 S.W.2d 649 (Tex. 1987).
Texas courts decide on whether a person qualifies to recover for bystander damages based on the following issues:
a. Whether or not Plaintiff was present at the time of the accident (close proximity).
b. If the shock was caused by a direct emotional impact from a sensory and immediate perception of the accident (experiential perception).
c. Whether or not the Plaintiff and victim were related.
A typical bystander case occurs when someone witnesses a loved one being killed or seriously injured as a result of someone else’s negligence. The person who witnessed the injury or death may file a claim for the traumatic emotional harm done to them.
EXEMPLARY DAMAGES OR PUNITIVE DAMAGES IN TRUCK ACCIDENT CASES
EXEMPLARY DAMAGES (Punitive Damages): These damages are designed to penalize and deter conduct that is outrageous, malicious, or morally culpable. Tex. Civ. Prac. & Rem. Code section 41.001(5); Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 40 (Tex.1998); Transportation Ins. v. Moriel, 879 S.W.2d 10, 16 (Tex.1994). They are permitted in order to “punish” the person who caused the injury for extremely bad or illegal behavior, with the goal of discouraging such behavior in the future. Exemplary damages are not considered compensatory. They are not considered economic or noneconomic damages either.
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WRONGFUL DEATH DAMAGES IN TRUCK ACCIDENT CASES
Death or Wrongful Death cases include the following damages (harms & losses – Economic and Noneconomic Damages):
The death of a person causes different types of recovery than in injury cases where the person survives. Since the person is deceased, they are unable to make the claim for their own injury. Family or the estate must make any claims for damages in situations where a person dies due to negligence or an intentional act. There are two courses of recovery in death situations in Texas – the Wrongful Death Act and Survival Causes of Action. Damages recoverable include both economic and non-economic damages, exemplary damages, and nominal damages.
WRONGFUL DEATH ACT Damages: Pecuniary loss (adult child, minor child, parent), loss of society & companionship, mental anguish, loss of spousal consortium, loss of parental consortium, loss of filial consortium, emotional and mental trauma resulting from the contemporaneous perception of death of loved one, exemplary or punitive damages, loss of inheritance.
SURVIVAL STATUTE Damages: Survival Causes of Action in death situations include damages that are recoverable by the estate: Funeral and burial expenses, decedent’s conscious pain and suffering, mental anguish, property damage, exemplary or punitive damages, and medical expenses. In other words, the estate steps into the shoes of the decedent, as though he had not died, and makes the claims on behalf of the decedent. Any money recovered goes to the estate.
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FREE CASE REVIEWS
If you are looking for a personal injury accident lawyer to discuss damages in truck accident cases, call our accident lawyer in Dallas at (972) 599 4100. We offer free phone consultations. We also provide a free strategy session. The strategy session includes a summary of your case, legal issues involved, and legal issues we identify as being critical to maximizing the compensation owed.
THERE IS NO FEE IF WE DO NOT WIN
You owe us nothing if we are unable to recover. We charge a contingency fee structured to take a percentage of what we recover. As a performance-based contract, the better we do for you, the better we do for ourselves. This aligns our interests in the case with our client’s interests. Call our truck accident lawyer in Dallas today.
DIRECTIONS TO OUR OFFICE
Law Office of Doug Goyen
15851 Dallas Pkwy #605
Addison, Texas 75001
(972) 599 4100 phone
(972) 398 2629 fax
Directions to our office: We are on the southbound side of the service road to the Tollway. Stay on the Dallas North Tollway until you come to the Keller Springs exit. Take the Keller Spring exit. Stay on the service road on the southbound side and go just past Keller Springs. Our office is the 2nd building south of Keller Springs, located on the service road to the North Dallas Tollway in the Madison Business Center on the 6th floor.
By Doug Goyen, douggoyen@goyenlaw.com
Call For A Free Case Review (972) 599 4100
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