Being in a car accident can be an overwhelming experience that can injure a person both physically and mentally. While claiming compensation for physical injuries often takes the spotlight, emotional distress is something that should not be ignored. While you may be able to claim for emotional distress, there are a few legal hurdles that need to be overcome.
In this blog, the team at the Law Office of Eli Schmulik will be stepping into the role of an auto accident lawyer in New York and will be walking you through how you may get compensation for the emotional distress suffered in a car accident in New York.
What is emotional distress?
In legal terms, emotional distress is the “highly unpleasant emotional reaction resulting from another’s conduct for which damages may be sought.” Since emotional distress does not possess a defined value, it is considered an intangible, non-economic loss for the purposes of calculating compensation.
Can I claim compensation for emotional distress with auto insurance?
In New York, when you’ve been injured in a car accident and are looking to claim compensation, it is mandatory for you to first go through the insurance process. Under New York law, auto accidents are governed under no-fault insurance. Under no-fault insurance, you can file a claim with your insurance company for losses you’ve suffered as the result of a car accident. Your insurance provider is legally obliged to compensate you, regardless of your fault in the accident, but how much they may compensate can be influenced by rules such as comparative negligence.
Under no-fault insurance in New York, your insurance company may cover economic losses such as medical and rehabilitation expenses, lost wages, and other related expenses with a cap of $50,000. However, no-fault insurance does not cover non-economic losses such as emotional distress. Therefore, you will NOT be able to claim compensation for emotional distress via insurance.
Can I claim compensation for emotional distress via lawsuit?
YES, you can claim compensation for emotional distress with a lawsuit, but as we’ve mentioned above, there are a few legal nuances that you need to consider. Ordinarily, if you want to file a personal injury lawsuit in New York, you must show that your injuries satisfy the serious injury threshold. Once you have established this fact, you can connect emotional distress to the physical injuries and claim compensation accordingly.
However, what if you have suffered no physical injuries, yet suffered emotional distress? Yes, you can, but proving emotional distress in such circumstances is quite challenging. In such a situation, your case must conform with the “zone of danger” rule. According to the aforementioned rule, you must establish that
- The defendant’s negligence put you in immediate danger of harm, or
- You perceived the death or serious injury of a close family member.
For example, you narrowly avoid a collision at an intersection with a speeding vehicle. While you may not have suffered any physical injuries, you could potentially develop anxiety about driving in the future. You can argue that the near miss was due to the defendant’s negligence and it was something that put you in immediate danger of harm.
While it is possible to file claims for emotional distress without physical injury, keep in mind that the courts are very hesitant to even consider such claims owing to the potential scope of abuse and frivolous litigation.
How is the compensation for emotional distress calculated?
As we’ve mentioned above, emotional distress does not have a set financial value. Therefore, it is the job of your auto accident lawyer to look at your case and present a value that is “fair and reasonable.” Since emotional distress is considered under pain and suffering, its value may be determined by either
- The “Per Diem” method; or
- The Multiplier method
Under the “Per Diem” method, you first establish a daily value for your pain and suffering and multiply it by the total number of days that the pain and suffering persisted. Alternatively, under the multiplier method, you add up all your medical expenses and multiply them by a factor between 1 and 5. The more serious your pain and suffering, the higher the multiplier will be.
Conclusion
In the aftermath of a car accident, your emotional distress also deserves to be acknowledged, understood, and compensated. If you’re on the lookout for an auto accident attorney in New York who may be able to help you build a strong and compelling case that would allow you to claim compensation for your emotional distress, schedule a free consultation with the Law Office of Eli Schmulik. Over the years, our team has handled many personal injury cases, and we’re here to help you as well.
