The no-fault law allows a lawsuit against the negligent driver under certain circumstances. To bring a suit the other driver must be more than 50 percent at fault in causing the accident to allow the injured person to recover noneconomic emotional and pain and suffering damages. Lawsuits may be brought against negligent drivers when an accident has resulted in death, permanent serious disfigurement, the serious impairment of a body function or long term income loss.
With regard to a claim based on a serious impairment of a body function, there must be a serious injury that can be objectively shown. An injury may be objectively established by such diagnostic tools as X rays, magnetic resonance imaging, CT scans, electromyograms, and other tests. On the other hand, neck or back pain, even if it lasts for years, sometimes cannot be shown by sufficient objective evidence to allow a suit to be maintained. A court may dismiss a claim if it determines that there is not sufficient objective evidence of a serious injury. The injury has to be serious, objectively manifested, affect an important body function, and affect a person’s general ability to lead his or her normal life. If you bring a claim now for an injury that the judge finds not to be serious enough and the injury later becomes worse, you will not be able to bring a claim for that injury later. In addition to proving that the other driver was at fault in the accident, it is important that there be sufficient evidence of an objective nature of a serious injury that affects an important body part and affects normal daily living. Recently the Supreme Court declared that the injury must effect the course and trajectory of one’s life to be serious enough. Besides family members and treating medical providers, you should always mention to your lawyer friends, co-workers, and other persons who might be able to corroborate before-and-after differences and assess the impact that the injury has had on your life.
The rules for an automobile negligence lawsuit include the following:
- The other driver must be more than 50 percent at fault for the accident for the injured person to recover noneconomic pain and suffering and other types of noneconomic damages. Economic damages such as excess wage loss or survivor’s loss after three years may be recoverable even if the other driver was less than 50 percent at fault.
- For an injured person to successfully bring a claim, there must be an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.
- No claim against the other driver for medical or wage losses may be made if the benefits are covered under the No-Fault Act by a no-fault insurer. Generally, this means that no wage loss for the first three years and no medical expenses will be claimed against the negligent driver.
- If the injured person owned and was driving an uninsured motor vehicle, noneconomic damages such as pain and suffering, embarrassment, or loss of enjoyment to life are not recoverable against the other driver. Economic wage losses or survivor’s losses may be recovered.