This is frequently the first question we get from clients or potential clients. It is really Two Questions:
1. What is the Value of My Case?
2. How Much Can I Expect to Recover?
Question Number 1 is Dictated by the New Mexico Uniform Jury Instructions. Question Number 2 Will in Large Part Turn on Insurance Coverage.
This post addresses only Question Number 1. However, keep in mind that the entire discussion presumes insurance coverage. Without insurance coverage of some kind, the discussion is largely academic. This discussion also does not include damages that your spouse or children may recover. Finally, it does not include discussions on comparative negligence. Each of these affect the potential recovery but are issues best addressed on their own.
To address the calculation of recoverable damages, we will just go in the order of the New Mexico Jury Instructions (UJI).
The first Jury Instruction on damages is UJI 13-1803 which addresses the loss of earnings or income. Obviously, the loss of earnings must be related to the accident. If it is, then you are entitled to recover for both past lost wages as well as future lost wages. The calculation of future lost wages usually comes into play with permanent injuries. It can be complicated and will often require an expert economist.
The second element of damages is medical expenses as set forth in UJI 13-1804. All medical expenses necessitated by your injuries are recoverable. This again allows for the recovery of both past and future medical expenses related to the accident. Like future lost wages, the calculation of future medical expense can be complicated. Often, an expert medical opinion will be necessary to estimate these costs.
The next element of damages under UJI 13-1805 relates to nonmedical expenses. Nonmedical expense can be fairly broad. They might include travel and lodging necessary for medical treatment. They might also include a wide variety of expenses that would not exist but for the accident. One example would be the need for paid labor to do what you would have otherwise done in the absence of the injuries (i.e. yard work, gardening, household chores, and so on). Once again, you may recover for past and future nonmedical expenses associated with your injuries.
Permanence and/or Disfigurement:
The next element of damages relates to the permanence of the injuries under UJI 13-1806 which is entitled “Nature, extent, duration.” The title captures the essence of the rule. The rule includes a calculation for permanent injuries such as disfigurement, scarring and loss of use of a limb. Permanent disfigurement such as scarring can be huge portion of damages. The amount awarded for disfigurement will depend on a variety of factors such as the nature of the scarring, the visibility, your age, your occupation, your gender and other considerations that would reflect on the personal harm of disfigurement.
Pain & Suffering:
The next element is one that gets the most attention and most heat; pain and suffering under UJI 13-807. Pain and suffering is deserving of its own discussion. Suffice it to say that you may recover for past and future pain and suffering and that the calculation of pain and suffering involves many consideration. The calculation is quite complicated and generally rather hotly contested.
Aggravation of Preexisting Conditions or Injuries:
The next element is the aggravation of preexisting condition under UJI 13-1808. The rule is clear that you may recover only for the aggravated or worsened portion of the condition not for the preexisting portion. This one too is deserving of its own discussion mainly because many injured people will try to conceal preexisting conditions. Keep in mind that preexisting conditions will not bar recovery for the but concealing them will often harm your claim.
The next element of damages is punitive damages under UJI 13-1827. Though you might have a different impression from all the rancor in the media concerning abusive awards of punitive damages, they are really quite rare. Punitive damages are worthy of their own discussion but generally they are awarded only of outrageous conduct on the part of the defendant “indifference to or a reckless disregard of the health or safety of others.”