Suing the Other Driver and No-Fault Car Insurance

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Some states have "no-fault" auto insurance - also called "personal injury protection" or "PIP" - where the insurance company ("insurer") automatically pays, regardless of fault, certain losses or damages sustained by an accident victim who was covered by the insurer's policy or was injured by someone covered by the insurer's policy (the "insured"). These damages are called "economic damages," and include things like medical expenses and funeral costs.

But what about "non-economic" losses or damages, like pain and suffering and loss of consortium, which is the loss of a spouse's companionship?

When Can You Sue?

A lot of the states' no-fault laws have no restrictions on when you can file a "tort action," that is, a private civil lawsuit against the wrongdoer or "tortfeasor," for non-economic damages.

However, there are some states that place limits or "thresholds" on when the tortfeasor can be sued. These thresholds are typically based on:

  • The amount of medical expenses that the injured person has paid or has been billed for payment, known as the "monetary threshold," or
  • The type of injury that the victim suffered, known as the "injury threshold"

The main idea of using thresholds is to prevent lawsuits over every single injury, and to limit the suits to "serious injuries." However, state no-fault laws differ on what exactly is "serious."

In addition, not all states use the term "non-economic loss," but could use terms like "pain and suffering," "mental anguish," "other nonpecuniary loss" or "non-monetary detriment."

So, if you've been injured in a car accident, it is vital that you understand your state's no-fault laws and how they treat non-economic damages.

Monetary Threshold

Many states that limit tort actions for non-economic loss include a monetary medical expense threshold in their definition of "serious injury." The monetary thresholds vary, but are usually at least $1,000.

Most no-fault statutes allow the monetary threshold to be met only from expenses "accrued," "rendered" or expenses "incurred." In other words, the expenses have to have been paid by or billed to the victim when the suit is filed, or there must be proof that the threshold will be met by the time the lawsuit goes to trial. The victim can't use future, uncertain expenses to meet the threshold.

No-fault laws require that the injured person's medical expenses be "reasonable and necessary." In some states, a medical bill will be enough to show that an expense was reasonable and necessary. In most states, however, the injured person has to have a doctor testify that the treatment and the accident were connected, that is, the accident made the treatment necessary.

Some states have mathematical formulas that are used to determine if an expense is "reasonable," while many states specifically define the types of medical expenses that can be used to determine whether the threshold has been met. These include things like:

  • Hospitalization
  • Surgery and
  • X-rays

You need to check the law in your area to see if your medical expenses can be used to meet the threshold.

Injury Threshold

Where lawsuits are allowed under no-fault laws, the victim of a "serious" injury still has the right to sue the tortfeasor even if the victim recovers PIP benefits. However, state no-fault laws are not consistent on the meaning of "serious" injury.

Death is a "serious" injury under all no-fault laws allowing for lawsuits against the other driver, and so if an insured dies due to a car accident, his or her survivors can file a lawsuit against the tortfeasor even though PIP benefits, like funeral expenses, were paid.

Most no-fault laws include a list of serious injuries, and state laws vary in the terms used to describe injuries. In general, however, "serious" injuries usually include things like:

  • Permanent "disability," "injury" or "loss of a body function"
  • Dismemberment, or the "loss of a body member," like an arm or an organ
  • Fractures, or bone breakages
  • Permanent or "significant" disfigurement

In addition to the different terms used by the various no-fault laws, the states differ on the types or "quality" of the injury or what must be proven to establish that the injury is in fact "serious," even if it's listed in the law. For example:

  • Some states require that the victim prove a disability with medical evidence or testimony from a doctor, while other states have set time periods to help the courts determine whether a given injury is "serious" and disabling
  • Some no-fault laws merely state that "fractures" are serious, but others require that that the fracture be "compound," or some other type of fracture that is more than a simple or "hairline" fracture
  • In some states, a small but permanent scar is not a "disfigurement," but in some states it might be
  • In states where there is a monetary threshold and and the no-fault law lists "serious injuries," the victim usually only has to meet one of them in order to be able to sue the other driver.

    Other Matters to Keep in Mind

    A derivative action is a lawsuit or legal claim that doesn't concern the injured person directly, but rather a person close to the injured person, such as a spouse. For example, "loss of consortium," which is the loss of a spouse's companionship and affection.

    So, in a state with a modified no-fault law, when can a wife sue for loss of consortium if her husband was injured in a car accident with the tortfeasor? When can the parents sue for "loss of services" when their child is injured in a car accident and can't do his or her normal household chores?

    In most states, there can be no derivative claim if the injured party's own claim fails to meet the monetary and/or injury threshold. So, in the example above, the wife can't sue for loss of consortium if the husband did not suffer a "serious" injury in the car accident.

    "Punitive damages" are damages, or an award of money from a court, that is intended to punish the tortfeasor for his or her wrongdoing and/or to stop the wrongful conduct from happening again. In a tort lawsuit under a no-fault law, punitive damages would be in addition to any PIP benefits you might have been paid as well as any other damages that the court might order the other driver to pay.

    Can you get punitive damages in an action against the other driver? Most states' no-fault laws do not mention punitive damages, while other statutes either expressly include them or expressly exclude them as a "non-economic" loss. So, a careful reading of the no-fault laws of your state, as well as court decisions that interpret or apply the no-fault laws, is necessary to determine if you can recover punitive damages.

    Statutes of limitations are specific time periods in which lawsuits or legal claims have to be filed. In most instances, if the lawsuit is not filed within that time, your right to sue will be lost. In torts, a legal claim "accrues," or arises, when the injury occurs. Also, the statute of limitations usually start to run at the same time - the time you have to file suit begins to tick away when the "injury" happens.

    Some states start the statutes of limitations on the date of the car accident, while in other states it is the date that the victim incurred or paid medical expenses. Still other states allow the suit to be filed if the victim can show that the monetary threshold will be met by the date of trial. In some states, if the statute of limitations begins to run on the date of the accident, the victim's expenses might not reach the required monetary threshold before the time limit for filing a lawsuit runs out.

    As with many of the matters involved with tort lawsuits and no-fault laws, you need to be certain of how the statutes of limitations apply under your's state's no-fault laws.

    Questions for Your Attorney

    • If I am injured in an automobile accident, should I sue the other driver as soon as possible or should I wait to see how much the medical bills will be in total?
    • Who should I sue if my injury was the result of negligence on the part of multiple drivers?
    • Can I sue a negligent driver five years after a car accident if it took that long to start having physical problems as a result of the accident?
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