Damages, what are they? How do you recover? What can you recover?

In civil cases, the plaintiff (or cross-complainant) is seeking recovery of damages in most instances. What types of damages exist? In a personal injury case, there are two types of damages that flow from the car accident itself. These damages are called general damages (e.g. property damage, medical expenses). There is another type of damage typically available in a car accident, so called “special damages” (e.g. pain and suffering). Insurance companies look at car accidents through a jaundiced eye in most instances. The first thing they will focus on is liability. what did their insured do (or fail to do) that caused or contributed to the accident? California is a “comparative negligence state” since the late 1970’s. What this means is that although the plaintiff may be partially responsible for the occurrence, they can still recover for their injuries and damages minus what percentage they are found to be at fault for.

The major premise of this article is dealing with the issue of punitive damages. Punitive damages are designed to punish the wrongdoer and to make an example of them for the rest of society. In connection with a car accident, punitive damages are normally recoverable. The reason for this is that most accidents are the product of negligence and nothing more. However, there may be times when punitive damages are recoverable (for example, when the defendant is operating their vehicle as a result of intoxication). Defendants are very interested to attempt to remove punitive damage allegations in a complaint because punitive damages are not covered under insurance. The rationale for this is that public policy mandates individual responsibility for the wrongdoer and if insurance can be available for punitive damages, this defeats the deterrence aspect of this type of damage. Therefore, insurance is not available to cover this type of damage.

To establish liability for punitive damages, the plaintiff must prove by clear and convincing evidence that the defendant was guilty of fraud, oppression or malice. The statute (Civil Code section 3294) allows for recovery under any one of the three scenarios. The reason for the higher standard of proof is that punitive damages are not favored by the law, but are available in the proper case. Malice is defined as an intent to injure or engaging in despicable conduct with conscious disregard for the safety of others. Fraud is the misrepresentation of material facts, oppression is the doing of an act to injure another person.

Each case is subject to the facts of the case. Factors that will tip the scales of damages of all types involve the type of plaintiff (good looking, famous or infamous), what type of witness they make, what type of damages you are trying to get, what experts you have and what defenses the other side will assert. Law is art and not science. Unlike science, where compound A always becomes compound B, law is totally subjective and the results vary with the above facts and the skill of the attorneys representing both sides and the venue (location) where the case is tried