When you file a car accident lawsuit, you’re asking the court to order the at-fault driver (the “defendant”) to pay you (the “plaintiff”) a sum of money for your injuries and property damage. The law calls that sum of money “compensatory damages,” because the money is intended to compensate you for the losses you’ve suffered.
If your car accident insurance claim doesn’t settle and you want to collect damages, you’ll need to file a lawsuit. What do you have to prove to win a car accident suit, and what kinds of damages can you collect if you win?
Should You File a Car Accident Lawsuit?
Unfortunately, there’s no simple answer to that question. You’ll want to consider several factors, and you should think about consulting an experienced car accident lawyer. There’s a chance you’ll collect more money by filing a lawsuit, but money alone might not be enough to make a lawsuit worth it.
Factors to Consider
Here are a few of the most important factors to consider when deciding whether to file a car accident lawsuit.
Do you live in a no-fault state? A no-fault insurance system pays limited insurance benefits to people who are hurt in car accidents, without regard to the fault of the drivers involved. The downside to a no-fault system is that it might limit your ability to file a car accident lawsuit. If you’re thinking of filing suit, the first thing you should do is check to see if yours is a no-fault state and whether the law allows you to sue.
Will I get more money? Maybe so. But you should also take into account the added costs—in attorneys’ fees and case expenses—you’ll have to pay. Even taking those costs into consideration, though, you might come out dollars ahead if you file (or threaten to file) a car accident lawsuit.
How long will it take? Lawsuits take time—sometimes lots of it. A simple case can take nine months to get to trial. If the case is complicated, that time could be 18 months or more. Keep in mind, too, that the case isn’t always over if you win a verdict. The other side might appeal, if only as a negotiating tactic.
The stress and anxiety involved. A lawsuit can be a very stressful and anxiety-provoking experience. Among other things, during a lawsuit you’ll have to participate in discovery, which likely will mean being deposed—questioned, under oath, by the opposing lawyer. You’ll also be expected to testify during the trial, which can be an intimidating experience.
Be Prepared to Wait for a Settlement
Your case can settle after you file a lawsuit (or even during or after trial). But you should expect that a settlement, if it happens, will take some time. Insurance company lawyers will need to review the file, do some research, and become familiar with the facts of the case. While all that might happen fairly quickly, you should plan on it taking at least a few months.
What You Must Prove to Win Damages in a Car Accident Lawsuit
To win your car accident lawsuit, you must prove these things:
- the other driver was negligent
- you suffered personal injuries, property damage, or both, and
- your losses were caused by the other driver’s negligence.
The Other Driver’s Negligence
In a typical car accident case, you have to prove that the other driver drove negligently. When it comes to driving, negligence simply means failing to drive as a reasonably careful driver would under similar circumstances. (Learn more about negligence in car accident cases.)
You Suffered Personal Injuries or Property Damage
To recover car accident damages, you must show that you suffered some personal injury or that your property was damaged. Head injuries, broken bones, injuries to internal organs, and soft tissue injuries are frequent car accident injuries. The nature and extent of your injuries will be the single most important factor in determining the value of your case.
Your Losses Were Caused by the Other Driver’s Negligence
This element, which the law calls “causation,” usually isn’t difficult to prove in a car accident case. When a negligent driver runs a red light, broadsides your car, and you suffered a broken leg, causation won’t be an issue.
But there can be times when causation is a problem. Sometimes injuries—especially soft tissue injuries or subtle brain injuries caused by a concussion—don’t show up right away. Also, causation can be a problem when a car accident aggravates preexisting injuries.
Failing to prove causation can torpedo your car accident lawsuit. If it’s an issue in your case, you’ll need to consult with an experienced car accident lawyer.
What Are Compensatory Damages?
“Compensatory damages” is the legal term for the money you receive—whether through a car accident insurance claim or a car accident lawsuit—to compensate you for personal injuries or property damage you suffer in an accident. If you’re injured because of another person’s fault, you can ask for compensatory damages for your losses.
What’s Included in Compensatory Damages?
Compensatory damages cover two broad categories of losses:
- special damages (sometimes called “economic damages”), and
- general damages (sometimes called “noneconomic damages”).
Special (Economic) Damages
Special damages include both past and future out-of-pocket losses that often are easy to measure in dollars. In most car accident cases, special damages will include such things as:
- past and future medical expenses
- past and future lost income
- charges for physical, occupational, or other therapy, and
- costs to repair or replace damaged or destroyed property (like a car, for example).
If a car accident causes death, survivors of the person killed (the “decedent”) might bring a wrongful death lawsuit against the other driver. In a wrongful death case, special damages can include:
- the decedent’s funeral and burial costs
- loss of the decedent's income and other financial support
- the costs to replace household services the decedent performed, and
- any other out-of-pocket losses caused by the decedent’s death.
General (Noneconomic) Damages
General damages are intended to compensate you for injuries like:
- pain and suffering
- emotional distress
- loss of enjoyment of life, and
- disability and disfigurement.
In a wrongful death lawsuit, general damages are likely to include loss of the decedent’s:
- love, affection, and companionship (sometimes called “consortium” damages)
- emotional and moral support, and
- guidance, education, and counsel.
How Are Compensatory Damages Calculated?
Special damages, in most cases, are simple to compute. General damages aren’t as easily reduced to dollars.
Calculating Special Damages
Calculating past special damages is typically a matter of adding up the receipts. For example, once you’ve reached maximum medical improvement, you’ll order your medical records and bills. Add all the medical bills to arrive at your “medical special” damages.
Your employer’s payroll office should be able to give you a letter documenting your past lost income and benefits. An estimate or repair bill from an auto shop will prove your auto damage amount.
Valuing future special damages—things like future medical expenses and future lost earnings—can be a bit tricky. To compute these losses, you’ll need medical, vocational, and financial expert witnesses. If your case involves future special damages, you should bring an experienced car accident lawyer on board to work with these experts.
Calculating General Damages
How do you put a value on pain and suffering or emotional distress? In some cases, lawyers and insurance companies use a multiplier, based on medical expenses, to calculate the value of general damages. Here’s how it works.
The multiplier is a number, usually between one and five (though it can be higher). The multiplier used in any case depends on factors like:
- the nature and extent of your injuries
- the medical treatment you received
- the extent of your recovery, and
- whether you suffered any long-term injuries, permanent disability, or disfigurement.
Start by totaling your past and future medical expenses. Then simply apply the multiplier to the total of your medical expenses. The resulting figure is an estimate of your general damages.
Special Cases Require Special Calculations
In cases involving truly catastrophic injuries like severe brain injury or paralysis, or in wrongful death cases, multipliers are probably off the table. Calculating general damages in those cases will involve medical, vocational, life care, and financial expert witnesses. You’ll need an experienced lawyer to work with those experts and calculate your damages.
(Here’s a more in-depth look at how to calculate the value of your car accident claim. You can use our handy claim value calculator to come up with a beginning estimate of the value of your case.)
Will I Get a Car Accident Settlement?
Probably so. Most personal injury claims (including car accident claims) settle without a trial. Yours likely will, too. Let’s look at why most claims settle, then we’ll talk about why cases sometimes end up in a trial.
Why Do Most Cases Settle?
Most cases settle because both sides prefer to avoid the risks and the expenses of a trial. Once a lawsuit is filed, case expenses start to add up fast. The costs to take even a simple car accident case to trial can exceed $10,000. If the case involves complex injuries, difficult legal issues, or many expert witnesses, that number can exceed $50,000.
In addition to the costs involved, there are risks in putting a case in the hands of a judge or a jury. Sometimes there will be a clear winner and loser. Other times, both sides walk away feeling dissatisfied. Settlement avoids these risks, allowing the parties to come to a resolution that both sides find acceptable.
Why Do Some Cases Go to Trial?
While there are many reasons a lawsuit might go to trial, two of the most common are:
- the facts on both sides are evenly matched, or
- the parties are far apart on settlement.
Evenly Matched Facts
Cases that are “lopsided,” meaning the facts clearly favor one side over the other, are more likely to settle. The side on the weak end of the facts realizes that settlement offers the best outcome and the case gets resolved fairly quickly.
But when the facts are evenly matched, each side might figure that a trial is a coin flip. In other words, evenly matched facts can mean that neither side feels a strong incentive to settle. It’s high-stakes poker in a courtroom.
The Parties Are Far Apart on Settlement
When the parties are far apart on settlement, each side might feel it has no choice but to take a chance on a trial. Suppose, for example, that a plaintiff insists their case is worth $250,000. The insurance company estimates that the case is worth no more than $25,000. With this kind of distance between them, each side likely feels there’s no choice but to try the case.
What Car Accident Settlement Data Tell You About the Value of Your Case
You might have spent some time surfing the internet for examples of car accident settlements. If so, you won’t be surprised to learn that helpful car accident settlement information can be hard to find. And what you can find doesn’t shed much light on what your own auto accident claim might be worth.
Car Accident Claim Data
Have a look at car accident claim data from the Insurance Information Institute (III). The III has information about car accident claims nationwide, making it one of the biggest car accident data sets available.
In 2021, an average car insurance personal injury claim cost the insurance company $22,734. A property damage claim cost the insurer $5,314. Note that these numbers include both what the insurer paid to the claimant and what the insurer spent to investigate and resolve the claim. Thus, we can’t tell what a typical car accident claimant actually collected.
Martindate-Nolo surveyed readers who had car accident claims between 2015 and 2020. Including claimants who got no payment for their claim, the average payment was $13,500. A more meaningful figure might be the median payment, the amount where half of all payments were larger and half were smaller. That figure was just $8,200.
Tellingly, readers who had a lawyer fared much better than those who didn’t. The average payment for an unrepresented claimant was $13,900. For claimants who hired a lawyer, the average was $44,600.
What’s Missing?
What does this data tell you about the value of your car accident claim? Not much.
What kind of vehicles were involved? How did the accident happen? What were the injuries? What about medical treatment? Were there permanent injuries or disabilities? Without this information (and more), an apples-to-apples comparison with your car accident claim simply isn’t possible.
Speak With a Lawyer to Find Out What Your Case Is Worth
We’ve already talked, in some detail, about how to calculate an approximate value for your car accident claim. If you want more information, your best bet will be to speak with an experienced car accident lawyer. This is someone who regularly works with car accident claims, and who knows about the claim valuation and claim settlement practices in your area.
If you hire a lawyer, you might collect more money, though it can take longer to resolve your case. Whether that tradeoff is worth it is a decision only you can make. But it’s a decision you should make after getting as much information as possible.
Here’s how to find an experienced lawyer in your area.