Matthews North Carolina personal injury and auto accident attorneys and
Charlotte North Carolina personal injury and auto accident and motorcycle accident attorneys.
Personal Injury and Auto and Car Accident attorney helping with Property damage aspects of a car truck or motorcycle accident. Learn about loss of use compensation that insurance adjusters must pay if your car is not drivable. Also learn about the diminished value compensation that adjuster must pay if your vehicle is not a total loss.
To maintain an action for negligence against an at-fault party following a car accident, you must allege and prove damages as an essential element of your case.
You must have sustained some injury, however minimal, because nominal damages are generally not recoverable when no actual damage i s done.
If you have been the victim of an accident and have been injured, you have a right to be compensated for your losses. There are two main types of personal injury damages:
- compensatory or actual damages, and
- punitive damages.
Punitive damages may be awarded, in an appropriate case to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. Punitive damages are intended to punish the defendant for his or her reprehensible conduct and to act as a deterrent to prevent the defendant and others from acting the same way.
Compensatory or actual damages are intended to cover all the expenses and aliments caused by the personal injury. Your family members may also be entitled to recover if your injuries in certain circumstances.
Damage awards can include the following:
This includes bills and expenses for services from doctors, hospitals, ambulance fees, radiology fee, cost of tests and lab work, medication, and services from nurses or other health care providers related to your injury.
Pain and Suffering
This is an award to compensate you for past and future physical pain and suffering caused by your accident.
When an accident happens as a result of another’s negligence you have the right to have your vehicle repaired and paid for by their insurance company.
The law in NC dealing with post-accident property damage is controlled by statute, case law (rules laid down by judges), the individual NC insurance policy, and the North Carolina Insurance Commission regulations (www.ncdoi.com). Pursuant to the North Carolina statutes, a North Carolina insurance policy covering damage to a motor vehicle must allow the insured to select the repair service shop for the repair of the damages to his or her car. The insurance adjuster in North Carolina shall not recommend the use of a particular motor vehicle repair service without clearly informing you that you are under no obligation to use the recommended repair service.
The insurance company has the right to do an estimate of your vehicle to determine what it would cost to repair it. However, pursuant to North Carolina law the insurance company has no right to tell you where to get your car fixed. That said, however, if you take you vehicle to another shop which costs more to fix it then the insurance company’s estimate, you might be responsible for the difference. The at-fault insurance company will only use an estimate of the damages produced by their own appraiser.
However, once you place your damaged vehicle with a repair shop of your choice and if the repair shop finds additional damage that was not on the original estimate and that is related to the car accident, then the at-fault insurance company will deal directly with the body shop and will pay directly to the body shop for any supplemental damages.
Understandably, all of this could be quite confusing to an uninitiated person.
At Semirog Law we will help you clear all the confusion. In fact, we will help you with your property damage portion of the claim FREE OF CHARGE.
When you are employed and received the W-2 income, the adjuster will generally ask for a statement from your employer confirming the number of days lost and your average salary information. In addition, you may have provide a note from a treating doctor excusing you from work.
When you are self-employed, your lost earnings can be more difficult to compute. In this case, the adjuster will want to see your tax returns and profit/loss statements.
Remember that you can also recover the present value of your future lost earnings, typically referred to as lost "earning capacity." Many courts have addressed the issue of whether a particular claim for lost earnings is too speculative. One court for example stated that "although precise damages are often difficult to ascertain, a jury may award damage based upon evidence that is relatively speculative, and it is well settled that some speculation is inherent in the projection of future earning capacity."
Diminished Value of your Car
What is a diminished value claim?
When your vehicle sustains damages in an accident, it inevitably looses its market value. It may look the same. It may drive the same. And, if the repairs are done correctly, no one should be able to tell that it was even in a collision in the first place. BUT, THE CAR HAS STILL LOST $.
Anyone ca request a disclosure of accident history or use reporting agencies such as CarFax to determine its accident history.
Moreover, when asked by a potential buyer about the accident history of your vehicle, concealing such would be an actionable and material misrepresentation.
The bottom line, the insurance company owes you compensation since you will not be able to sell your car for the same amount as you could before the accident.
Not surprisingly, an insurance adjuster would NEVER volunteer this information to you or offer a diminished value compensation. Even more striking, an adjuster would frequently and unreasonably affirm that your vehicle has not lost any value, despite the extensive damage to it.
You are entitled to recover your vehicle's lost value!
CALL US TODAY. WE ONLY GET PAID ONCE AND IF WE RECOVER DIMINISHED VALUE COMPENSATION FOR YOU!
Loss of Use of Your Vehicle
If your vehicle is damaged due to someone else’s negligence, you are entitled to either reimbursement of your rental expenses or, if you didn’t actually rent a vehicle, payment for the loss of use of your vehicle.
In other words, the at-fault insurance company should compensate you for those days you were not able to use your car.
A lot of our personal injury clients also own the car that was damaged in the auto accident, and frequently they are having issues with receiving compensation for the loss of use of their vehicle. Some insurance companies will only pay a limited number of days for a rental vehicle. Also, insurance companies will sometimes refuse to pay you for loss of use of your vehicle if you can not prove that you actually lost money by renting another vehicle.
Do not let them take advantage of your understandable lack of knowledge in this area. You are entitled to Loss of Use if your vehicle was out of commission and you did not have a rental.
The amount you are entitled to is determined by calculating the number of days it takes to repair your vehicle times the reasonable rental cost of a replacement vehicle. Generally, insurance companies in North and South Caroline will pay anywhere between $ 15 and $ 25 per day.
You will still be entitled for Loss of Use compensation even if you did not rent a vehicle and even if you had another vehicle to drive. You do not have to prove that you actually rented a vehicle. You only have to prove that you could have rented a vehicle, and how much the rental would have cost you.
Pursuant to North Carolina General Statute § 1D-15 punitive damages may be awarded only if you can prove that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded:
- Willful or wanton conduct.
In addition, you must prove the existence of one of the above referenced aggravating factor by clear and convincing evidence.
In North Carolina, there is also a cap on the amount of punitive damages a plaintiff can collect. Punitive damages in North Carolina cannot exceed:
- three times the amount of compensatory damages or
- two hundred fifty thousand dollars ($250,000), whichever is greater.
Even if a jury returns a verdict for punitive damages in excess of the maximum amount as specified above specified, the judge will still reduce the award and enter judgment for punitive damages in the maximum amount.
Intentional Infliction of Emotional Distress
North Carolina has long recognized the right of a person to recover for severe emotional distress, in certain circumstances.
The modern tort of intentional infliction of emotional distress is defined as intentional conduct on the part of the defendant that is extreme and outrageous and that causes severe emotional distress to the plaintiff.
North Carolina courts require that to recover for intentional infliction of emotional distress one must show:
“extreme and outrageous conduct . . . to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Pittman v. Hyatt Coin & Gun, Inc.
You can read more on this topic in this excellent law review article from Cambell Law School.
Negligent Infliction of Emotional Distress
In Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A. North Carolina Supreme Court, held that a lawsuit for negligent infliction of emotional distress requires a showing that
- the defendant negligently engaged in conduct,
- it was reasonably foreseeable that such conduct would cause severe emotional distress (often referred to as "mental anguish"), and
- the conduct did in fact cause the plaintiff severe emotional distress.
The Supreme Court went on to explain that:
neither a physical impact, a physical injury, nor a subsequent physical manifestation of emotional distress is an element of the tort ... . Further, a plaintiff may recover for his or her severe emotional distress arising due to concern for another person, if the plaintiff can prove that he or she has suffered such severe emotional distress as a proximate and foreseeable result of the defendant's negligence.
The Supreme Court made it clear that severe mental anguish is simply another kind of harm, like physical or pecuniary injury, for which recovery may be sought in a negligence action, and that mental distress alone can provide a basis for recovery. Bystanders, those whose mental distress is caused by concern for others, even bystanders who suffer no physical impact or physical manifestation, may recover so long as their emotional distress was foreseeable.
Currently, the only apparent limitations on recovery are
- the requirement that the emotional distress be severe, and
- that severe emotional distress be a foreseeable consequence of the defendant's conduct.
The Supreme Court defined ''severe emotional distress'' as
any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.
As to the foreseeability of the emotional distress, the courts in North Carolina will generally look at the following factors:
- your physical proximity to the negligent act,
- relationship to the other,
- whether you personally observed the negligent act.
For example, in Sorrells v. M.Y.B. Hospitality Ventures of Asheville, plaintiffs brought a wrongful death action alleging that defendant negligently served alcohol to plaintiff's son knowing he was highly intoxicated.
The boy was killed in a single-car accident while he was driving home from the defendant's establishment. Plaintiffs alleged that when they learned that their son had been killed and that his body was mutilated, they suffered severe emotional distress, including ''sickness, helplessness, frailty, ... grief, loss of enjoyment of life, a wrecked nervous system, depression, and emotional grief."
The Court held that the plaintiff's severe emotional distress was, as a matter of law, not a reasonably foreseeable consequence of the defendant's negligence in serving alcohol to the plaintiff's son. The Court also noted that defendant had no actual knowledge that the plaintiffs existed, and nothing would have put them on notice that the plaintiffs were likely to suffer severe emotional distress. Further, the plaintiffs did not personally observe the defendant's negligent act.
Loss of Consortium
North Carolina law permit husbands and wives to recover damages for “loss of consortium.”
To illustrate, consider the example where Mark is severely injured by a negligent driver. In a subsequent personal injury lawsuit, Mark will likely sue the driver for damages resulting from his physical injuries. In addition, Mark’s spouse may also sue the driver to compensate her for the loss of consortium she suffers as a result of Holden’s injury.
In the typical action for loss of consortium, the non-injured spouse will sue the defendant for damages resulting from her inability to enjoy the same love, affection and companionship that she did prior to her spouse’s injury.
This legal claim tends to arise after one spouse is seriously injured or killed by a third party’s negligent or intentional acts.
Conventional wisdom considers a “loss of consortium” to entail those losses suffered as a result of decreased or limited sexual activity between spouses. In reality, however, the term covers much more. Loss of consortium damages seeks to compensate the non-injured spouse for the injury’s effects on previously existing spousal functions.
As such, a claim for loss of consortium typically compensates the claimant spouse for loss or deprivation of the following:
- Emotional support
- Sexual relations
- Services, e.g., household chores, caring for small children
In other words, even though a claim for loss of consortium may include a decrease or change in sexual activity between spouses, the claim is usually much broader.
If you have any questions about your auto accident damages or the amount of loss of use or rental reimbursement that you are entitled to, definitely call our office.
We would be glad to answer any of your questions FREE OF CHARGE.
CALL US TODAY AT (704) 759-6110
Index of Relevant Terms:
- Absolute Divorce
- Contributory Negligence
- Imputed Negligence
- Defenses to a Negligence Lawsuit
- Driving and Texting in North Carolina
- Emotional Distress
- Punitive Damages
- Res Ipsa Loquitur
- Short Sale
- Traumatic Brain Injury
- Truck Accidents
- Wrongful Death
- Wrongful Discharge from Employment