Tennessee Injury Law Center : Lawyers for Personal Injury and Wrongful Death : Serving Memphis, Nashville, Knoxville

My sister received a significant head injury in an automobile wreck caused when a truck crossed the centerline of a road in Tennessee.  Is there a limit on the damages she can recover in the case?

There is no limit on the damages she can recover for medical expenses or  loss of earning capacity.  However, if the wreck occurred on or after October 1, 2012, there is a limit on the damages she can recover for pain, suffering, disfigurement, and loss of enjoyment of life - referred to by the Legislature as "non-economic damages."  That limit is $750,000.

The Legislature has determined that no person can recover non-economic damages in excess of $750,000 unless the injury is "catastrophic" or the falls within a narrow class of exclusions (for example, the defendant was under the influence of alcohol).  Shockingly, a brain injury is not considered a catastrophic loss by the Tennessee General Assembly.  Even if an injury is determined to be catastrophic non-economic damages are limited to $1,000,000.

A constitutional challenge is expected to be made to this legislation.  However, until the Tennessee Supreme Court hears a case where this issue is raised, judges and juries will be required to apply this law and limit recoveries accordingly.

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My son was seriously injured in a auto accident.  What rights do I have as his parent  in a lawsuit against the person who caused the wreck? 

You have the right to recover medical expenses that you paid or were paid by your insurance company.  (You almost certainly have to repay your health insurance company out of the settlement or judgment.)  You can also recover damages for loss of services of your child.

Under Tennessee law, you cannot recover damages loss of the relationship between you and your child because of the injuries or for your emotional distress at seeing your child deal with his injuries.  

However, you may be able to recover damages for emotional distress if you saw or heard the wreck your son or came up on the scene of the event shortly after the dog attack occurred.    An experienced personal injury lawyer can tell you whether you qualify for recovery of this type of damages - they are dependent of the details of your case and your emotional injuries, if any. 

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For Tennessee personal injuries occurring on or after October 1, 2011, damages for pain, suffering, loss of enjoyment of life, disfigurement, and all other intangible losses are limited to $750,000.

There are a couple of exceptions for certain defined "catastrophic" losses, such as spinal cord injuries resulting in paraplegia and quadriplegia,  significant burn injuries, and two or more limb amputations in a single incident.  In these cases damages for pain, suffering, etc. are limited to $1,000,000.

There is not an arbitrary  limit on such damages for injuries that occurred before October 1, 2011.

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Does Tennessee have any limits on punitive damages in personal injury and wrongful death cases?

Yes, for all injuries and deaths that occur as a result of reckless or malicious acts on or after October 1, 2011.

Under the new law, punitive damages are limited to $500,000 or two times the compensatory damages awarded in the case, whichever is more.  Punitive damages are not limited in cases involving those who cause harm while under the influence of drugs and alcohol and those who intend to cause physical injury.  Punitive damages are prohibited in certain other types of cases.

If the injury or death occurred before October 1, 2011, there is no statutory limit on the amount of punitive damages that can be awarded.

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I have a car accident case coming to trial soon in Clarksville, Tennessee.  My lawyer said he had to give the jury proof of my life expectancy. Why?\

Apparently, your doctor has said that you have a permanent injury that will impact you for the rest of your life.  Thus, the jury must have some evidence of how much longer you are likely to live, and that means that it must hear some evidence of life expectancy.

Usually, this evidence comes from government documents.  In some cases, such as those where children or adults have brain injuries or or other catastrophic injuries, medical experts are asked to testify about life expectancy.

Life expectancy is also part of the proof a jury must hear in wrongful death cases.

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I was hurt in a car wreck and do not think that the other driver's insurance company will offer me a fair settlement.  My neighbor told me that the insurance company will look at my entire medical history before they settle my case.  Is that true?

Your medical history is important in any case in which you are claiming to have suffered a physical or psychological injury as a result of someone else’s negligent or intentional act. Your medical history establishes the baseline of your physical or psychological well being before the injury. You can only recover in the lawsuit for the injury caused by the act or omission of the responsible person. You may not recover damages for physical and mental suffering or medical care necessitated by preexisting conditions. When a preexisting condition is made worse you can recover damages for the worsening of the condition. Your medical history will be important to proving this claim.

So, an insurance company may well insist upon the disclosure of your medical history before settling a claim.  There are certain limits on what they can require you to reveal.  An experienced personal injury lawyer can guide you through this process.

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I was hurt in a wreck with a big truck about six months ago.  It wasn't my fault.  I have been waiting for over a year for the case to settle.  I lost four months of wages and have had to pay some medical bills that were not covered by my health insurance.  Can I get the insurance company to pay interest on my settlement?  It doesn't seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law.   Some states do permit the recovery of interest in this type of situation, but Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits. 

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest.  Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.  

For example, if you win a judgment of $365,000 at a jury trial in Tennessee you are entitled to collect interest of $100 per day from the date of the jury verdict until the date the judgment is paid.  If a partial payment of the judgment is made the interest is payable only on the unpaid portion of the judgment.  (Note:  you have to pay income taxes on the interest that you are paid.  Be sure to talk with you tax advisor about this.)

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I was hurt in an automobile wreck and missed 10 days from work.  Fortunately, I had some sick days and some vacation pay left so I still got my normal pay check.  Does the fact that I got paid mean that I cannot claim "lost wages" when my lawyer and I try to settle my case with the at-fault driver?

Under Tennessee law you can recover your lost wages under this senario.  Wny?  Because the law states that the at-fault driver does not get the benefit your "sick days" or your vacation time.  You had to use them to recover from injuries caused by another's negligence and therefore you have lost the opportunity to use those days in the future.  Thus, you can get paid for those days by the at-fault driver even though you do not have an out-of-pocket loss of those days. 

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I was hurt in a wreck with a tractor-trailer and have missed six weeks of work.   It looks like it I will miss another six weeks of work and I am starting to hurt for money.  The truck driver was clearly at fault.  Will the trucking company's insurance company pay me now for my lost wages?

Almost certainly they will not.  These insurance companies usually require that all medical bills, lost wages claims,  and other claims for damages be presented at one time and then they try to make a global settlement.

Why wait?  To put financial pressure on you and your family.  You see, they want you and your family to feel financial pressure so that you will settle for less than the fair value of your claim.

Truthfully, an experienced trucking litigation lawyer cannot force the insurance company to give you interim payments for wages.  He or she can try, but it usually won't work.  A lawyer can help you evaluate your case and gather the information necessary to help  you get a just settlement for your case.  In addition, if a just settlement cannot be recovered, a lawyer can help you pursue the claim in court.

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I was hurt in a car wreck.,  My doctor prescribed physical therapy.  I am supposed to go three days per week.   The physical therapist is 60 miles away and I simply cannot afford the gas to go back and forth three days per week.  If I don't go to physical therapy will it hurt my case?

It might hurt your case.  If you don't go to physical therapy as prescribed the insurance adjuster and the lawyer for the insurance company will assume that you were not really injured or that you did not do everything you should have done to minimize the impact of the injuries on your life.

More importantly, the failure to get therapy may actually impact your recovery.

Thus, I recommend that you make every effort to go to physical therapy, even if it means cutting back on some other items that would ordinarily be part of your budget.  The physical therapy is important for your health, and your case.

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 I was hurt in a car wreck.  My back and leg were injuried.  I don't need surgery right now but who knows what will happen 10 years from now.  Can I settle my case for my medical bills, my lost wages, and my pain and suffering and an agreement that the at-fault driver will pay my future medical bills if I have any?

You can try, but in 30 years as a lawyer I have never seen the argument work.  If the at-fault driver's insurance company believes that its driver is at fault and they want to settle the case, they want to settle all personal injury-related claims at one time.   (They will usually settle property damage claims seperately.)   They will not agree to leave open the issue of future medical expenses.

Thus, if a doctor says you will probably need a future surgery because of the injuries you sustained in the wreck, the cost of that surgery and related damages can be part of settlement negotiations.  If the doctor says that future surgery is possible, then the amount of the possible surgery cannot be included.  If there is a trial, the court will allow testimony only on whether a future surgery is probable and, if a doctor says it is, then the court will allow presentation of evidence on the cost of the surgery and related damages.

I hasten to add that worker's compensation cases are different and, in those cases, it is very common that the employer bears the responsibility of paying future medical bills related to the injury even after a settlement or trial.  Be sure to ask your worker's compensation lawyer what responsibility the employer will have for your future medical bills before you accept any settlement proposal.

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I have a personal injury case that must be filed in Tennessee.  Are there any caps on damages in these cases? 

Not under current law.  However, the Tennessee General Assembly has recently passed a law that the Governor is expected to sign that will cap non-economic losses in most cases at $750,000.  In a few cases the cap is raised to $1,000,000.

Non-economic damages are damages for pain, suffering, disfigurement, disability, and loss of enjoyment of life.

The new law will apply to all injuries (and deaths) that accrue on or after October 1, 2011.  It is apparent from your question that your injury has already occurred.  Therefore, the only cap on damages in your case (unless your case is against a governmental entity) is the considered judgment of the jury.  Damage claims against governmental entities have been capped for years.

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I haven't filed tax returns in over filed years - I have been working and making money but I just didn't get around to filing the returns.  I was hurt in a wreck and missed four weeks of work.  

You might, but if you push too hard you may find yourself in the situation where the IRS finds out that you have not filed tax returns and you may face criminal and civil penalties.   Also, if the jury finds out that you have not been filing tax returns and paying taxes as you should it may hurt your case.

Defendants in cases frequently ask for income tax returns to prove loss of earnings claims, and it your income is not reported it makes it very difficult to recover it.  This is often a problem in cases involving small business owners, who all too often understate their income and overstate their expenses in an effort to reduce their taxes.  Doing so is not only illegal but also hurts your ability to prove your true damages in a personal injury or wrongful death case.

This is yet another reason to fulfill your duty to our country and file tax returns and pay the taxes you owe.  None of us like to pay taxes, but the way to have your voice heard on that issue is through the ballot box, not cheating on your taxes.  To be sure, take legitimate deductions and seek tax advise as appropriate, but pay what you owe.

If you get hurt to the extent you are losing income but you have not filed returns or paid taxes as required by law, tell your lawyer about it as soon as possible.   An experienced personal injury lawyer can help you with this issue.

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 I was hurt in a car wreck in Sparta, TN.   I lost six weeks from work but I am now back to work and think I will be able to work in the future.   I hired a lawyer but we could not get the case settled.  A lawsuit was filed.  Now, the insurance company of the guy that hit me says they want my federal tax returns.  I don't think it is any of their business.  Can they make me give them my tax returns?

Probably not, although the defense  does have a right to have proof of your loss of income.

If our clients are uncomfortable about releasing their tax returns, we typically argue that tax returns are not discoverable in personal injury cases and instead will produce only the W-2 forms (which show the income earned from each employer).  Our position is the tax return contains much more data than income information and that in a person injury case it is only data about income that has anything to do with the case.

The situation is a little different if we represent a person who owns his or her own business and he or she does not take a regular paycheck.  Under those circumstances we have to turn over additional data to the defendant.

I must concede, however, that some judges will make us turn over our client's entire tax return even though we object.  If a judge orders us to do so we of course do it.

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My daughter is 21 years old and is a college student.  She is has no declared major but she is doing well in school.  She was in a bad car wreck and had severe injuries to her leg.  Can she include a claim for loss of future earnings as part of her personal injury claim? 

Yes, but she will have to be able to prove how the injuries affected her ability to earn money in the future.  This will require evidence of what she was wanted and able to do before the wreck and evidence of how the wreck limited those opportunities.  Those lost opportunities then need to be converted to dollars.

At our office, in appropriate cases, we utilize the service of a vocational expert to help us make the assessment of how an injury affects future work opportunities.  We then use an economist to demonstrate the amount of economic loss as a result.

Let me hasten to add, however, that this can be a very complicated issue.  It requires analysis of not only what the the victim wanted to do but also what she was able to do.  For example, if your daughter's leg injuries are very severe she may well not be able to be a professional golfer.  However, if your daughter had never played golf or never played golf competitively before the wreck, it would be very, very hard to show that the wreck that caused her injury caused the loss of the ability to make a living as a professional golfer.  

The lack of a declared major does not make the determination of damages impossible.   Her good grade history is an important factor, as will be the nature of her course work and her previously expressed desires as to the type of career or careers she was seeking.  

So, situations such as this require an analysis of not only what was possible but also what was and is probable.  And, it requires converting the gathered data into dollars.  It is fair to say that this can be a challenge with younger clients (who lack an earnings history in a given field) but it is not impossible.  

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What types of damages can be recovered in a personal injury case?

 In most personal injury cases, you can recover monetary damages for medical bills, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.  

These categories of damages are explained below.

• Medical Bills

People injured by the negligence of another can recover the reasonable medical bills necessarily incurred as a result of the incident.   To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

• Physical Pain and Suffering

Pain and suffering is physical discomfort caused by an injury.

• Emotional Pain and Suffering

 Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

• Disfigurement

Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

• Loss of Enjoyment of Life

 Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

• Disability

Disability is the loss of your ability to do the same physical things that you did before you were injured.

• Loss of Earning Capacity

 Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

• Interest

 If a trial is necessary, you win at trial, and the defendant appeals you can recover interest while the appeal is underway.  You can also recover interest if the defendant delays in paying you what you are owed. This is called post-judgment interest. The interest rate under current law is 10% per year.

However, under current Tennessee law, you cannot recover pre-judgment interest (interest on the amount of your losses between the time you incurred them and the time of settlement or trial) in Tennessee personal injury and wrongful death cases.

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What are punitive damages?  How frequently are they awarded in Tennessee?

Punitive damages are awarded only in cases where the defendant acted intentionally, knowingly, maliciously, or recklessly.   Punitive damages are designed to punish the wrongdoer and deter both the wrongdoer and others from similar conduct in the future.  

In Tennessee one must prove they are entitled to punitive damages by "clear and convincing" evidence.  This is a higher burden than applies in the typical civil case, where liability and damages must be proved by only  preponderance of the evidence.

According to Tennessee Jury Verdict Report -  Year in Review 2010 there have been punitive damages awarded in only 59 jury trials in Tennessee in the last six years.  During that period, there were over 1200 jury trials.  Thus, you can see that punitive damages are awarded in a very small percentage of cases that go to trial.

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I have a pending personal injury claim from a wreck with a truck.  I think someone is following me around and photographing or videoing my activities.  Can insurance companies do that?

Yes, within certain limits.  It is not uncommon for insurance companies to use surveillance to determine what task you can perform.  The private investigators look to "catch" you performing sports activities, yard work and other physical labor that they say is inconsistent with the limitations and physical injuries you are claiming in litigation.

This is something that you need to discuss with your lawyer as soon as possible.

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My 22-year old son was hurt in a car wreck.  Can I file a lawsuit for him? 

No, unless he is so severely injured or suffers from some type of disability that he is deemed incompetent.  If he is incompetent, there are formal proceedings which must be filed to have him declared incompetent in the eyes of the law.  If that happens, a conservator will be appointed and he or she will have the power to file or defend a lawsuit.  If you are appointed the conservator, you would have that right.

However, if your son is competent, he is the only one who can file suit on his behalf.  You can help him find a lawyer and can give him assistance in preparing the case, but the decision to file and the right to file is his and his alone.

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 I was hurt in a wreck with a big truck in Tennessee?  What damages are available in a trucking accident claim?

Answer: In a personal injury cases, you can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

A significant part of many personal injury claims in the recovery of the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

Physical pain and suffering is physical discomfort caused by an injury. In the event you suffer an injury that will cause pain in the months and years after a settlement or trial, you can recover damages for that as well.

Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

Disability is the loss of your ability to do the same physical things that you did before you were injured.

Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

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My husband was badly hurt in an accident with a tractor-trailer inTennessee.  What damages are available in a trucking accident claim?

Your husband has what is known as a personal injury claim.  In a personal injury cases, you can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

A significant part of many personal injury claims in the recovery of the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

Physical pain and suffering is physical discomfort caused by an injury. In the event you suffer an injury that will cause pain in the months and years after a settlement or trial, you can recover damages for that as well.

Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

Disability is the loss of your ability to do the same physical things that you did before you were injured.

Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

You also have a claim for the impact of the wreck on the relationship between you and husband and for his loss of services.  In Tennessee, this is known as a "loss of consortium" claim.

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I caused a car wreck and the other party was hurt.  I really don't know how badly she was hurt but her medical bills are $40,000.  The case goes to trial in about 3 weeks.  My lawyer, who was hired by my insurance company, says that the case will probably go to trial because the person who got hurt wants $125,000 to settle the case and the insurance company has only offered $80,000.  I only have $100,000 of insurance for this wreck.  What happens if the case goes to trial and the jury awards the lady who got hurt more than $100,000?

If the jury awards, say, $120,000 your insurance company will have to pay $100,000 and you will have the responsibility of paying the last $20,000. 

When you are sued for more than your insurance policy limits you should typically seek the input of a private lawyer to help you make sure that your insurance company is treating you fairly.  Your company has a duty to fairly evaluate claims against you to protect you from an excess judgment.   I do not have enough information to say if your insurance company is treating you fairly in this case but I would suggest that you seek the advice of a competent lawyer as soon as possible.

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I was hurt in a personal injury case.  I have hired a lawyer and he has filed a lawsuit for me.  How much money can I ask for?

You have asked a question that is impossible to answer with the information you have given.   What were your injuries?  What were your medical bills?  Are you likely to have future medical bills as a result of your injuries?  Did  you lose any income as a result of your injuries?  Do your injuries impact your future earning capacity?  How have the injuries affected your ability to enjoy your life?  

There are many more questions that have to be answered.  Here are just a few.  How old are you?  Do you have any other medical conditions that affect the quality or length of your life?  What was your level of physical activity before you injury?  Where did the injury happen?  Where will your case be tried?  How did you get injured?   Who caused your injuries?  Who is the adverse lawyer?

The answer to these questions, and many more, impact the value of a case and therefore how much money you should originally seek from a jury or in a settlement demand.  The careful consideration of all of these factors is why you should seek the help of an experienced lawyer to help you.  How do you find such a lawyer?  Read here.

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I was in a car wreck six months ago.  The wreck was not my fault.  I had a back injury and now the doctor says I need surgery.  The surgery will cost $40,000.   I don't really want surgery, but the pain is pretty bad and the doctor says it will get worse.  Will I get more money for my personal injury case against the other driver if I have the surgery?

Well, I really do not think that should be a factor in whether or not you have surgery.  You should have surgery based on medical advice.  If you do not agree with your doctor's opinion, seek the opinion of another doctor.  But, make a decision about surgery based on whether or not you need surgery, not whether or not it will impact your case.

If you have surgery and the surgery is determined to have become necessary because of injuries in the wreck, the jury can and should include the cost of that surgery in the wreck.  It can and should also include pain and suffering caused by the surgery and the wages you lost from work during the surgery and recovery process.

If you don't have surgery the jury can still award you the medical expenses for the surgery that the doctor says will likely occur in the future.  Likewise, the jury can award damages for the pain, suffering and lost wages that will result  when that surgery occurs.  Practically speaking, however, is that a jury may give that less weight because they might assume that the surgery will never occur.

If you don't have the surgery you can recover damages for the pain and suffering, etc. you experience because of the  back problem.  However, the jury will be told that you have a duty to mitigate your damages, and if they believe you should have surgery and that will eliminate or substantially reduce your problems, they may not award you damages for future pain and suffering, etc. from your back injury.

As you can see, this is a complicated problem.  My bottom line is that your health and well-being comes before a lawsuit, and you should seek the medical attention and advice you need to solve your medical issues.   

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Some states place a cap on damages in personal injury and wrongful death cases.  Does Tennessee?

No, with a couple of exceptions.  At the present time, Tennessee does not cap damages in any type of personal injury or wrongful death cases except cases filed against state and local governmental entites.  There are no caps against people or non-governmental entites.

The amount of damages in any case is determined by a judge or, if a jury is requested, a jury.  If a jury is requested, the judge reviews the jury's decision after the trial and can lower or increase the amount of damages.  Damages are rarely increased.

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I was hurt in a car wreck six months ago.  It wasn't my fault.  I have been waiting for over a year for the case to settle.  I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance.  Can I get the insurance company to pay interest on my settlement?  It doesn't seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law.   Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits.  

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest.  Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.  

For example, if you win a judgment of $365,000 at a jury trial in Tennessee you are entitled to collect interest of $100 per day from the date of the jury verdict until the date the judgment is paid.  If a partial payment of the judgment is made the interest is payable only on the unpaid portion of the judgment.  (Note:  you have to pay income taxes on the interest that you are paid.  Be sure to talk with you tax advisor about this.)

The inability to collect interest on personal injury and wrongful death lawsuits (unless a judgment is entered) is yet another reason why you want to hire a lawyer who will work to finish your case promptly.  

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I was hurt when I fell in on a slippery floor in a grocery store.   I broke my right leg.  I missed ten weeks of work on my construction job.  My lawyer says that we need a statement from my employer stating that I missed ten weeks of work and indicating how much money I would have made had I worked.   Why is that necessary?  I don't want to hassle my boss with this.

Insurance companies need documentation to evaluate personal injury cases because some people don't tell the truth about what happened to them or how the injuries they suffered cost them money.    The claims adjuster for the insurance company has to make sure that his or her file demonstrates that they did a good job gathering evidence to properly evaluate the claim.  This includes seeking information from other people, like your boss, to back up what you say.

I am sure that you are telling the truth about the time you missed from work.  The insurance adjuster may think you are, too.  But the adjuster needs to be able to prove to his or her boss that your claim was thoroughly and properly evaluated, and that is why documentation is necessary.  The files of insurance adjusters are evaluated from time-to-time by auditors to make sure that they are not handing out the company's money without good reason, and thus the insurance adjusters want to make sure that their files reflect a reasonable basis for the decision they made to settle the claim.

An experienced personal injury lawyer should help you get this from your boss.

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I was hurt in a car wreck.  My back and leg were injuried.  I don't need surgery right now but who knows what will happen 10 years from now.  Can I settle my case for my medical bills, my lost wages, and my pain and suffering and an agreement that the at-fault driver will pay my future medical bills if I have any?

You can try, but in 29 years as a lawyer I have never seen the argument work.  If the at-fault driver's insurance company believes that its driver is at fault and they want to settle the case, they want to settle all personal injury-related claims at one time.   (They will usually settle property damage claims seperately.)   They will not agree to leave open the issue of future medical expenses.

Thus, if a doctor says you will probably need a future surgery because of the injuries you sustained in the wreck, the cost of that surgery and related damages can be part of settlement negotiations.  If the doctor says that future surgery is possible, then the amount of the possible surgery cannot be included.  If there is a trial, the court will allow testimony only on whether a future surgery is probable and, if a doctor says it is, then the court will allow presentation of evidence on the cost of the surgery and related damages.

I hasten to add that worker's compensation cases are different and, in those cases, it is very common that the employer bears the responsibility of paying future medical bills related to the injury even after a settlement or trial.  Be sure to ask your worker's compensation lawyer what responsibility the employer will have for your future medical bills before you accept any settlement proposal.

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I was hurt in a boating accident.   It was the other guy's fault.  The doctor said that as I result of my injuries I might need knee surgery one day.  Can I recover damages for the cost of that surgery?

You can recover damages for a future surgery only if a doctor says it is reasonably likely to occur.  If the surgery is merely possible or might happen, the law of Tennessee does not permit you to ask a judge or jury to award damages for the cost of that surgery.

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I broke my hip in a fall-down accident at a local store.  The company wouldn't settle me so I filed a lawsuit.   The doctor said I might need a hip replacement in the future.  How will a jury award me damages for this surgery? 

Well, first you have to win your case.  That is, you will have to prove by a preponderance of the evidence that the store caused the dangerous condition or knew or should have known of the existence of the dangerous condition and failed to rectify it.    

If you prove the fault of the store, then you can recover your past and future medical expenses (and other types of damages).  However, you can recover future medical expenses only if a doctor says that it is more likely than not that you will need hip replacement surgery.  If the doctor says that, the jury can consider the cost of the future surgery, which will come from the testimony of the doctor or another witness.

If a doctor will not say that a future surgery is probable but will only say it is possible, Tennessee law does not permit you to recover damages for the surgery.

Your lawyer will meet with your doctor and determine whether the doctor will testify that  surgery is probable or just possible.   The anticipated testimony of the doctor will influence the value of the case for settlement purposes and at trial.

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I was in a car wreck yesterday.  I thought I was ok but I woke up this morning and feel absolutely horrible.   Should I go to the doctor, or should I just tough it out?

You should see your doctor and accurately report the nature and extent of your concerns.   Call and make an appointment to get in and see the doctor as soon as you can.

Why?   There are three reasons.  First, your doctor may uncover a problem that is more serious than you think it is.  

Second, your doctor may prescribe some sort of treatment or therapy that will help you heal faster and minimize the impact of the injury on your life.  

Third, in the event that your physical problems continue the at-fault driver's insurance company will expect to see prompt consultation with a doctor about your problems.  The failure to promptly see a doctor may lead the insurance company to conclude that you were not hurt in the wreck or at least not seriously hurt.   More importantly, a jury may see it the same way.  Remember, the burden is on you to prove that the injuries you claim you had occurred as a result of the wreck.   And, whether it is fair or not, jurors (and insurance companies) are more likely to link the injuries to the wreck if prompt medical attention is sought.

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My lawyer said that he needed to spend money on demonstrative evidence to help us win the case.  What is demonstrative evidence?

Demonstrative evidence are things that demonstrate or show information to the jury.   Demonstrative evidence may be an enlargement of an x-ray showing a fracture in a bone, a metal fixation device removed from a broken bone, a model of the scene of the accident, or a video that depicts a day-in-the-life of someone that suffered a catastrophic injury.    Demonstrative evidence also includes computer animations.

Demonstrative evidence tends to educate jurors by allowing them to see or touch something, as opposed to just hearing the spoken word.   

Demonstrative evidence can be an important part of personal injury and wrongful death cases, and good lawyers consider the use of one or more types of demonstrative evidence in every case - even in non-jury trials.

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 I was hurt in a car wreck and hurt my back.  The insurance adjuster for  the other driver wants to know if I ever had any back pain in my life before the wreck.   I don't think this is any of her business.  Can the insurance find out this information about my medical history?

No, she cannot, unless you tell her or you sign a medical authorization which gives her the right to look at your medical and pharmacy records.  

However, your prior medical history that is related to the injuries you claim in the wreck is relevant in resolving your claim, and if you don't give the insurance company the right to see your medical records you will have difficulty getting your bills paid and getting the other compensation the law permits you to recover.   The insurance company wants to determine whether you had any prior complaint or injury to the same body part.   It also wants to see if you have any other medical condition that it can argued contributed to the accident or can otherwise be used to diminish the value of your case.

An experienced personal injury lawyer can guide you through this process.  He or she can tell you whether you should sign a medical records release and can help you give truthful answers to questions asked by the insurance company.    

I would advise you not to give the insurance adjuster a right to receive your medical records without consulting with an attorney first.  

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I am a college student who was run off the road by a tractor trailer.   I was badly hurt and had to miss a semester of college.  It looks like I will have permanent injuries as a result of the wreck.  What damages can I recover?

At the outset, let me remind you that no damages can be recovered unless you can prove that the truck driver negligently caused your injury.  The case you describe can be difficult, particularly if there was no impact between your vehicle and the truck and if there are no witnesses to the event. An experienced personal injury lawyer can help you determine the likelihood of success of your case.

Now, back to your question.  In a personal injury cases arising from accidents with trucks, you can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

A significant part of many personal injury claims in the recovery of the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

Physical pain and suffering is physical discomfort caused by an injury. In the event you suffer an injury that will cause pain in the months and years after a settlement or trial, you can recover damages for that as well.

Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

Disability is the loss of your ability to do the same physical things that you did before you were injured.

Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

As indicated above, an experienced personal injury lawyer can help you determine the value of your case.

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I was in a bad car wreck.   I had $50,000 in medical bills and missed eight weeks of work  (I make $800 per week as a mechanic).   I am probably going to have to have another surgery.  My doctor also says I will have arthritis for the rest of my life.   I just found out that the person who hit me only has $100,000 of liability insurance.   That is not enough for what he did to me.   Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause.  A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased he or she is liable for the rest.  

The problem, of course, is collecting from a person who causes harm.  To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both.   Many people have very few assets and insufficient income to make a payment to the person who they hurt.   If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation.   (There are some exceptions to this.  For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.) 

An experienced personal injury lawyer will help you evaluate the factors you should consider in determining how hard to press the defendant to make a personal contribution over and above the liability insurance policy available for the claim.

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How does a jury determine how much money to give for pain and suffering in a personal injury case?

The jury listens to the evidence and the law as explained by the judge and determines what they believe is a fair amount. There is no formula for determining how much money should be awarded for pain and suffering. 

The law simply tells the jurors to use their best judgment to determine how much money to give for pain and suffering. The lawyer for the injured person attempts to help the jury understand the nature and extent of the pain and suffering experienced by his or her client, and the lawyer for the defendant (the person sued) attempts to explain the that pain and suffering was either not real, was not as serious as person said it was, or that the injury is not permanent. 

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 I received a broken leg in a motorcycle crash and received a settlement from the other driver’s insurance company.   Do I have to pay federal income taxes on the money I received?

Not under current federal income tax law. There are certain types of lawsuits that give rise to the duty to report the settlement as income and pay taxes on that income, but those rules do not include monies paid in personal injury cases such as the one you describe.

Tax laws change from time to time. Thus, in the event you receive money in a personal injury case, you should ask your tax advisor if the money you received in the settlement is taxable.

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When I got hurt in a car wreck I missed  three weeks of work but still received my normal pay because of accumulated sick time. Can I still ask the person who caused the car wreck to pay me for the time I missed from work ?

Yes. Under current Tennessee law, the law says that a person who caused the wreck and your injuries should not get the benefit of your employer’s sick leave policy. Thus, under what is known as the “collateral source rule,” the fact that you collected sick pay does not impact your right to collect for those “lost” wages in a settlement or trial. 

You will need a statement from your employer listing the days you missed work as a result of injury to help the other driver's insurance company evaluate your claim.

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My income tax returns do not include income from a second job I have been working over the last few years.  I was hurt in a wreck and missed 6 weeks of work from both jobs.  Am I going to be able to recover my lost income from both jobs?

You might, but if you push too hard you may find yourself in the situation where the IRS finds out that you are been cheating on your taxes and you may face criminal and civil penalties for your failure to report income.   Also, if the jury finds out that you have not been paying taxes as you should it may hurt your case.

Defendants in cases frequently ask for income tax returns to prove loss of earnings claims, and it your income is not reported it makes it very difficult to recover it.  This is often a problem in cases involving small business owners, who all too often understate their income and overstate their expenses in an effort to reduce their taxes.  Doing so is not only illegal but also hurts your ability to prove your true damages in a personal injury or wrongful death case.

This is yet another reason to fulfill your duty to our country and pay the taxes you owe.  None of us like to pay taxes, but the way to have your voice heard on that issue is through the ballot box, not cheating on your taxes.  To be sure, take legitimate deductions and seek tax advise as appropriate, but pay what you owe.

If you get hurt to the extent you are losing income but you have not paid taxes as required by law, tell your lawyer about it as soon as possible.   An experienced personal injury lawyer can help you with this issue.

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My son was hurt in a wreck with a big truck.   He had a severe injury to his knee and is missing the basketball season. He is the best player on his sixth grade team. I worry that he will never be able to play professional basketball. Can he receive damages for the loss of income from a professional basketball salary and endorsements?

Questions like this are quite frequent. Tennessee law says that damages must be reasonably certain and not speculative.    Damages need not be proven beyond a reasonable doubt, but the damages sought must be reasonably likely to occur because of the defendant’s negligence.

It would be very difficult to prove that a sixth grader would have played professional basketball.   It is possible – almost all professional basketball ball players played basketball in sixth grade and, if I had to guess, most of them were better-than-average players in sixth grade. 

On the other hand, very few sixth graders who play basketball make it in the pros – even those that are the best in their school and even their city at that age.

So,  let me say that without knowing a bunch of additional facts not revealed in this question that it is highly unlikely that you could successfully assert such a claim.

Once again, the facts make a difference. If your son was not in sixth grade but rather a starting forward on the 2010 Duke basketball team and  had been frequently listed as a hot prospect for the pros, he would have  a very high likelihood of being able to prove that knee injuries in a motor vehicle wreck cost him a professional basketball career (assuming this was backed up by his doctors). Under this scenario, an experienced injury lawyer would get the right medical experts, professional scouts, sports compensation experts, and economists to prove the damages.  

But a sixth grader?  That is a tough case to make.

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 Why do I have to get released from medical care before my case can go to trial?

There is no law that says you must.  However, most lawyers would agree that in cases where there is an injury that is likely to completely heal or one that will reach a certain stable level within a reasonable period of time it makes sense to not have a trial until the doctor says you have reached “maximum medical recovery.”

This is necessary because a jury must be able to determine whether it is likely you are going to have permanent injuries and whether those injuries will affect your income. Also, it is important that the jury have a handle on your medical bills, and it you are still actively seeking treatment it will be difficult to get a grasp on the amount of the bills you will incur.

There are several exceptions to this rule. For instance, some people are hurt so severely that they are going to have active medical care for the rest of their lives. In those cases, the prudent lawyer will wait until the injured person has reached a level of recovery such that competent experts can render an opinion within reasonable probability what future bills will be incurred and what impact the injuries will have on the person’s life. Whether this is six months or two years after the incident depends on the circumstances.

An experienced personal injury lawyer will help you make a decision about when it is appropriate to go to trial in a case.  

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 I got hurt in a car wreck. What is the average jury verdict in car wreck cases in Tennessee?

I can give you that number, but it is meaningless.

Why do I say that? Assume there were just two car wreck verdicts in Tennessee in 2009. One was a case where the person who filed suit had no treatment in the emergency room, $3000 in chiropractic treatment, and a history of prior neck and back pain. Assume that the verdict in that case was $3500.

Assume the other person who filed a lawsuit received a permanent, life-altering brain injury. Assume this person has, $1,000,000 in medical bills, $14,000,000 in future medical bills, $2,000,000 in lost wages, and will live another 60 years in a wheelchair totally dependent others. Assume that the jury verdict in that case is $70,000,000.

Given those two cases, the average verdict is just under $35,000,000. What does that tell you about  the value of your case? Nothing. Absolutely nothing.

Obviously, my example is a very simple one, but the point remains the same: average verdicts provide very little information about the value of any particular case. Experienced personal injury lawyers know that there a many variables to the value of a case and that it is a mistake to look at an average to determine the value of a single case.

That being said, we have some data. The Tennessee Jury Verdict Reporter used its best efforts to gather all jury verdicts in Tennessee for the 12-month period ending November 30, 2009.   For that one year period there were 130 car accident cases tried in Tennessee. When the plaintiff won the case, the average verdict was $60, 552. When plaintiff wins and losses are considered, the average verdict was $43, 318. The plaintiff “won” 93 cases and lost 37 cases. 

The average verdicts have declined in the last five years. The 5-year average for plaintiff wins is $77,916. The 5-year average when one considers wins and losses for the plaintiff was $55, 144.    In the last five years plaintiffs have won 586 auto trials and lost 242. 

Let me say it again: these numbers are averages, nothing more and nothing less. They say nothing about the value of any particular case. They tell us nothing about the strength of the case or the nature of the injuries. Likewise, they do not take into account the value of cases that were settled without a trial.   Finally, they do not take into account the competence and experience of the lawyer handling the case.   And any lawyer worth his or her salt will tell you that this last factor makes a real difference in many, many cases.

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I live in Tennessee and was badly hurt in a car wreck in Tennessee.   My medical bills for the injuries received in the wreck exceed $100,000.   The driver who caused the wreck only has $25,000 in liability insurance and I have the same amount in uninsured / underinsured motorist coverage.  What are my rights?

You have the right to go to trial, prove the fault of the driver who caused the wreck, prove the nature and extent of your damages, and let a judge or jury decide the value of your case.   If the value of the case exceeds the amount of insurance that the at-fault  driver has (and it would under the facts you have stated above) you can attempt to collect the extra amount from the driver who caused the wreck.

Under Tennessee law, you will not be able to collect to collect any monies from you uninsured / underinsured motorist carrier because the amount of insurance the at-fault driver is equal to your UM / UIM coverage.  The law of some states would permit you to collect money from your own insurance company under these circumstances, but not if the UM / UIM policy was issued in Tennessee.

So, how do you collect the rest of the judgment you won against the at-fault driver?   There are several options.  You can follow a legal process to get a portion of the person's paycheck.  You can seize their checking and savings accounts.  You can take any stocks and bonds they own.  If he or she owns real estate in his or her own name you can force a transfer or sale of it.   In summary, there are lots of things that a lawyer can help you do to get the at-fault driver to pay what they should pay.

Of course, the at-fault driver who is insolvent or is rendered insolvent can always file bankruptcy and ask the bankruptcy court to discharge the debt.   Whether this can and will happen is dependent on the facts of the case.

In summary, winning a lawsuit and obtaining a judgment is only one step on the path to collecting the money that the law says that you are entitled to recover.  An experienced personal injury lawyer can help you understand the process for collecting more money than the at-fault driver's insurance policy limits or giving you guidance about the wisdom of pursing an at-fault driver (or any other defendant) for money over-and-above the liability insurance policy applicable to the case.

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 I was injured in a car wreck – it wasn’t my fault. I own my own business and I have missed a lot of work. Am I going to be able to recover damages for the impact of the wreck on my business?

One of the biggest challenges of a personal injury lawyer is representing self-employed people in personal injury cases. It can be very difficult to prove the loss of income of self-employed people, but the task is made easier by having a long history of earnings, good records of receipts and expenses, and injuries that are significant enough that a jury (or insurance adjuster) can clearly understand how the injuries impact the business.

Other than these basic statements, whether the loss can be shown will depend on the facts of each case. An experienced personal injury lawyer will give you guidance on how to document your losses as best you can.

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I was in a car accident and broke my wrist.  My health insurance paid my medical expenses.  I sued the driver that caused the wreck and received a settlement for $75,000.   My lawyer says I have to re-pay my health insurance company out of my settlement.  Is that correct?

It almost certainly is correct.  My health insurance companies have a provision in their contract with you that if you incur medical expenses and later recover those expenses from the person who caused you to get hurt and incur the expense you must re-pay the insurance company.  

There are some exceptions to this rule.  An experienced personal injury lawyer can help you determine whether you have the obligation to re-pay your health insurance company and whether there is a way for you to reduce the amount you are otherwise obligated to pay it.

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