QuestionQUESTION: I was rear ended last evening when I was stopped at a stop sign. There wasn't much damage to my car but am having it looked over. The only pain I am having this morning is my wrist hurts (I was holding the steering wheel with this hand when I was hit). I have not had it checked yet. This accident was emotionally distressing for me because I was in an accident 2 1/2 yrs. ago where I had to be life flighted and it has taken me a while to come back physically as well as emotionally. THis is a set back for me. I am more concerned about my emotional state than I am about my car. Am I entitled to any sort of emotional distress compensation even though it wasn't a serious accident?
ANSWER: Charmayne,
I would answer that yes, you are entitled to compensation for the distress, even though it wasn't a serious accident. I must say that the venue will make a big difference in how easy it will be to get compensated. In Texas, your situation is best shown by what they call the "eggshell" rule. It simply means that, if you had an accident before that causes you to be a little more shaken up than others, then the person that rear-ended you has to accept that. They can't pick and choose who they rear-end. They use eggshell as an analogy. If you have a cracked eggshell, but the egg is still held together, and then someone comes along and bumps it and cracks it the rest of the way open, it is still the person's fault that bumped it that it cracked open, follow? Whew! That is a mouthful.
I hope I have helped.
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QUESTION: I really appreciate your advice. I am feeling guilty for asking about emotional distress compensation, but I have been through a lot in the last couple of years, and just feel that I didn't ask for this again - and now I have to pull myself back up again emotionally. Should I feel quilty? I've actually mentioned everything to both my insurance co. and the other person's but neither seemed interested. I'm afraid to bring it up again. I am from Pennsylvania - do you know anything about the law there?
AnswerWell, if you sue, then you can ask for non-economic damages which is what emotional distress would be. You would have to claim pain and suffering, and I would advise that you have the wrist checked out. You should not feel guilty for being injured and distressed! You are right in that you did not ask to be involved in an accident. It was the negligence of another that has put you in this situation. I would say that the insurance company should become interested in settling with you. You seem to make a good witness for yourself. Be persistent and don't let the adjuster make you feel guilty. They owe you for your suffering, and if you can document your past injury, it will help your case. See the rule below which I took straight from Pennsylvania code:
Rule 223.3. Conduct of the Trial. Actions for Bodily Injury or Death. Jury Instructions on Noneconomic Loss.
In any action for bodily injury or death in which a plaintiff has raised a claim for a damage award for noneconomic loss that is viable under applicable substantive law, the court shall give the following instructions to the jury.
The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement.
The first item to be considered in the plaintiff’s claims for damage awards for past noneconomic loss and for future noneconomic loss is pain and suffering. You are instructed that plaintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find (he) (she) has endured from the time of the injury until today and that plaintiff is also entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress you find (he) (she) will endure in the future as a result of (his) (her) injuries.
The second item that goes to make up noneconomic loss is embarrassment and humiliation. Plaintiff is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe (he) (she) has endured and will continue to endure in the future as a result of (his) (her) injuries.
The third item is loss of enjoyment of life. Plaintiff is entitled to be fairly and adequately compensated for the loss of (his) (her) ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today and to be fairly and adequately compensated for the loss of (his) (her) ability to enjoy any of the pleasures of life in the future as a result of (his) (her) injuries.
The fourth and final item is disfigurement. The disfigurement that plaintiff has sustained is a separate item of damages recognized by the law. Therefore, in addition to any sums you award for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment of life, the plaintiff is entitled to be fairly and adequately compensated for the disfigurement (he) (she) has suffered from the time of the injury to the present and that (he) (she) will continue to suffer during the future duration of (his) (her) life.
In considering plaintiff’s claims for damage awards for past and future noneconomic loss, you will consider the following factors: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of the physical pain and mental anguish which the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injuries; and (8) in case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff.
