April 07, 2006
What damages are recoverable?
Alabama law allows recovery of:
A. Property Damage Property damage covered under a policy is usually the difference in the fair market value of the property before and after the accident. 1 Alabama Pattern Jury Instruction - Civil 11.23, and Krebs Manufacturing Co. v. Brown, 108 Ala. 508, 18 So. 659 (1895). Unless a building is completely destroyed, this value is the cost of repairing it or replacing the damaged part.
As to an automobile the measure of damages remains the difference in fair market value before and after an accident. Birmingham Railway Light & Power Co. v. Hinton, 157 Ala 630, 47 So. 576 (1908). The cost of repairs therefore must not exceed this measure of damages. Fuller v. Martin, 41 Ala. App. 160, 125 So. 2d 4 (1961). If a vehicle is totaled then only the junk value is taken into account in determining the measure of damages. The damages are its fair market value just before the accident less its junk value. Until payment is made, interest should accrue at 6% per annum. Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20 (1955) and § 8-8-1 Ala. Code (1975). Other damages proximately caused by the accident such as towing, and storage fees are also recoverable. If the vehicle is totaled, arguably tax and title fees proximately caused by the accident are recoverable. C. GAMBLE, ALABAMA LAW OF DAMAGES § 2-2 (4th ed. 1999).
If the damage to an automobile does not total it then there may also be a claim for loss of use during a reasonable time period for repair in addition to the above damages and likewise a loss to a commercial vehicle may allow for claim of damages for the reasonable market value of the higher use of the vehicle. ALA. PATTERN JURY INSTRUCTIONS CIVIL 11.23, 11.25 (2d ed. Supp. 2002).
B. Personal Injury As to the personal injury claim, the non-punitive damages comprising a claim are called compensatory or actual damages. They are money compensation for the injury or loss suffered. Industrial Chemical and Fiberglass Corps. v. Chandler, 547 So. 2d 812 (Ala. 1988). Compensatory damages are further divided into general and special damages. General damages are those that logically, naturally and necessarily flow from the wrongful act and do not have to be specifically plead in the complaint. C. GAMBLE, ALABAMA LAW OF DAMAGES § 2-2 (4th ed. 1999). Special damages naturally flow from the wrongful act but not necessarily. There are usually special circumstances involved, and so they must be specifically plead in order to recover them. ALA. R. CIV. P. 9(g) and Swedenburg v. Copeland, 263 Ala, 241, 82 So. 2d 227 (1955). In a tort action those proven special damages which are proximately caused by the wrongful conduct are recoverable. Continental Volkswagen, Inc. v. Soutullo, 54 Ala. App. 410, 309 So. 2d 119 (1975) and Bush v. Alabama Power Company, 457 So. 2d 350 (Ala. 1984).
Those types of damages that are capable of calculation are also referred to as economic damages. For example, in an auto accident case, the injured person may have been out of work for a week. He is entitled to recover wages he would have earned. As Alabama Pattern Instruction 11.10 points out, the jury is to determine “what he was reasonably certain to have earned during the time so lost, had he not been disabled”. Future loss of wages may also be included in a personal injury claim. Alabama Pattern Jury Instruction 11.11 instructs the jury to consider the plaintiff’s health, physical ability, earning power or capacity prior to the accident and at present, the nature of the extent of injuries and whether the injuries are reasonably certain to be permanent or if not, the future extent of their disabling effect. Upon taking all of these factors into account, the jury is charged to determine the amount of money which would “reasonably and fairly compensate him for such future loss”.
Medical bills also are part of the personal injury claim. The care received however must be care received as a result of an accident. If the case goes to court a physician must testify to a reasonable probability of medical certainty that the injures suffered were caused by the accident in question, and she must state, as to each medical provider, that the care received was for these injuries. Louisville and Nashville Railroad v. Banks, 132 Ala. 471, 31 So. 573 (1902); C. GAMBLE, MCELROY’S ALABAMA EVIDENCE § 128.09 (5th ed. 1996); National life and Accident Insurance Company v. Singleton, 193 Ala. 84, 69 So. 80 (1915); ARE Rule 702-(Witness qualified as an expert by knowledge, skill, training, or education may testify in the form of an opinion.)
The medical charges recoverable must be reasonable. Aplin v. Dean, 231 Ala. 320, 164 So. 737 (1935); ALA. PATTERN JURY INSTRUCTIONS CIVIL 11.09 (2d ed. Supp. 2002). Also the care must be found to be necessary. Again if the case goes to court usually an expert such as a treating physician must testify as to the necessity of medical care. C. GAMBLE, ALABAMA LAW OF DAMAGES § 12-4 (4th ed. 1999); Birmingham Amusement Company v. Norris, 216 Ala. 138, 112 So. 633 (1927). Travel expenses to and from medical care are also recoverable, for example the ambulance bill. Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965); and Guest v. US, 991 F. Supp. 1332, 1347 (N. D. Ala. 1997).
Non-economic damages are those damages which are usually not capable of calculation by a precise mathematical formula but are instead largely left to the discretion of the jury. Such damages include pain and suffering, mental anguish, loss of enjoyment, loss of consortium, and permanent injuries.
Pain and suffering, which flows from an injury, is distinguishable from mental anguish suffered apart from the injury. For example, a broken leg may cause physical pain, but there may also be mental anguish. Mental anguish may result from the injury as well as other circumstances such as disability resulting in an inability to work, an inability to enjoy activities or concerns over ongoing pain. In order to recover for pain and suffering, obviously there must be an actual physical injury. In fact, if a jury awards medical expenses for a physical injury then it must also award additional damages for pain and suffering where the evidence of pain and suffering is undisputed. Posey v. McCray, 594 So. 2d 152 (Ala. Civ. App. 1992) and Kinard v. Davis, 594 So. 2d 157 (Ala. Civ. App. 1992).
Another typical type of damage claimed in a personal injury matter is the loss of consortium claim. Alabama Jury Instructions 11.13 and 11.14 set forth the factors due to be considered by a jury in assessing damages for loss of consortium. Consortium is defined in 11.13 as “…the right of a husband to his wife’s company, fellowship, cooperation and assistance in the marital relationship as a partner in the family unit. Loss of consortium includes the impaired ability of his wife to perform her usual services in the care of the home (and in the education and rearing of the children) as well as loss of her society, companionship and comfort, taking into account the length of time of such loss and the reasonably certain duration of any future loss of consortium”. For some reason, the jury instruction for the wife’s claim for loss of consortium of her husband is notably shorter. As to the wife’s claim, consortium is defined as including “…love, companionship, affection, society, comfort, solace, support, sexual relations and services”.
The threshold requirement for such a claim is that the parties were either ceremonially married or in a common law marriage. See Mattison v. Kirk, 497 So. 2d 120 (Ala. 1986). The spouse’s claim is independent of the injured party’s claim and an award of damages to the injured party does not necessarily entitle the spouse to an award of damages. See Ex parte N.P., 676 So. 2d 928 (Ala. 1996).