Compensation for Emotional Distress?
(Chicago, IL, USA)
I was driving down the highway in my new car when without warning the car burst into flames. The passengers were able to escape unharmed physically, but emotionally they are not the same.
The auto company hasn't determined what they will offer me yet. I know my demands will include a replacement car that is not the same model and the payment of the car loan on the destroyed car. But I also believe the passengers deserve compensation for their emotional distress.
Would I use the 3-5x the expense cost to determine the emotional distress amount? My costs come out to $55,000 to replace the car, would my demands of $165,000-$275,000 be fair in order to compensate the four passengers that were traumatized? Thank you.
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ANSWER for "Compensation for Emotional Distress?":
Ginny (Chicago, IL):
Regrettably you do not have what is called “standing” to sue on behalf of your passengers. They will either have to file suit for themselves individually, or will have to retain separate attorneys to file suit on their behalf.
Even if the passengers file suit they will in all probability not be successful. To be able to recover compensation for their emotional distress, known in legal circles as “mental anguish” or “pain and suffering,” they will each respectively have to prove a direct link between the fire and the mental anguish they suffered.
Doing so will take psychiatric and psychological evidence and testimony; meaning each of them will have to seek the psychiatric and psychological counseling necessary to produce evidence of their injuries.
The often used “3 times” calculation is correct. But the 3 times calculation is based on an injured party’s medical damages, referred to as “Hard Costs”. The 3 times calculation will include the injured party’s Hard Costs, Out of Pocket Expenses, and Lost Wages.
If they decide to pursue their separate lawsuits the manufacturers will have the right to have each passenger examined by the manufacturer’s own psychiatrists and psychologists. Once examined the difficulty increases. The psychiatrists and psychologists will have to distinguish each passenger’s normal anxieties and emotional distress from that suffered when the car caught fire.
The next difficulty will be comparing each passenger’s damages to the others. Should passenger 1 be paid more because she suffered more emotional distress than passenger 2?
Normally insurance companies do not pay for emotional distress. In the very few cases they have, the mental anguish was horrific and not appropriate for describing and listing here.
In the end, if the insurance refuses to pay for the passengers’ emotional distress their only recourse will be to file suit. If they do you can be assured each passenger will be deposed before trial.
Because the courts permit the questions in pre-trial depositions to be very liberal, you can be sure each passenger will be grilled by the manufacturer’s attorneys about every psychological and psychiatric problem they ever had, from breakups with boyfriends, to the most private of experiences.
Further, because the psychiatrists will have to testify, each passenger will have to waive their respective physician-patient privilege. When each passenger testifies you can be assured the private thoughts will be questioned.
We are not suggesting your passengers should not send a letter requesting compensation. We just want them to know a small amount of what they are in for if they file a lawsuit in pursuit of satisfaction.
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.
Best of luck,
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