Rachael Brennan has been working in the insurance industry since 2006 when she began working as a licensed insurance representative for 21st Century Insurance, during which time she earned her Property and Casualty license in all 50 states. After several years she expanded her insurance expertise, earning her license in Health and AD&D insurance as well. She has worked for small health in...

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Reviewed by Jeffrey Johnson
Insurance Lawyer

UPDATED: Jul 14, 2021

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In a nutshell...

  • Almost half of the states in the United States currently use a no-fault system of liability for car accidents
  • People would almost certainly need to file a lawsuit for pain and suffering if the person who caused the auto accident that hurt them was not insured
  • Even if the accident were your fault, your insurance would cover medical expenses in a no-fault state

Someone who claims pain and suffering due to a strain on their video gaming finger will likely not get as much of a settlement as someone who received a leg injury the day before they were supposed to run an Olympic race.

In some cases, pain and suffering awards are determined by a meeting between the two insurance companies.

Other times, a lawsuit is filed and a jury must determine how much to award for pain and suffering in an auto accident if anything at all.

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Going to Court for Pain and Suffering

When a jury gets involved in deciding an award for pain and suffering, the human element adds a completely new level of factors that affect the decision.

A jury should consider the extent of the injury, pre-existing injury, the documented proof of pain and suffering and the credibility of the witnesses involved.

A jury when making their final determination might also consider:

  • Age
  • Race
  • Occupation
  • Social status
  • Competence of the attorney
  • Your appearance

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What is pain and suffering in an insurance claim?

Pain and suffering is the legal term for the emotional and physical stress that an injury causes.

Pain and suffering might include:

  • Lingering aches and pains
  • Depression
  • Shortened lifespan
  • Other quality of life issues

People can get documented proof of pain and suffering in a few different ways. Sometimes a psychologist or psychiatrist’s report can tell about emotional distress.

Receipts for a new mattress or sleeping pills if the pain is preventing sleep could prove some degree of pain and suffering, too.

What are the tort and no-fault liability states?

So-called tort states assign drivers to pay for damages based on their level of fault in an accident. Drivers can be sued for things like pain and suffering and financial losses as the result of an accident in a tort state.

This can often lead to long and complicated court battles over who is responsible for what.

The advantage for drivers is that under this system they don’t have to prove their innocence before they can be compensated for damages.

The bad news is that even if a driver is clearly at fault, that driver cannot be sued for pain and suffering or emotional distress.

When would a lawsuit be necessary to get paid for pain and suffering from an auto accident?

People would almost certainly need to file a lawsuit for pain and suffering if the person who caused the auto accident that hurt them was not insured.

Otherwise, someone may decide to file a lawsuit for pain and suffering if the insurance company declines to pay or offers an unreasonable amount of payment.

If a lawsuit is required, it is best to have written documentation, including expenses related to the pain and suffering, to prove the case.

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Can I be compensated for pain and suffering in an auto accident that is my fault?

In general, there is nobody else to seek pain and suffering damages from if you cause an accident.

If you live in a tort state, you and your insurance would be liable for the cost of the accident, or at least as much of it as could be blamed on you.

It is not possible to seek pain and suffering damages from a car accident in a no-fault state, but there are still a few more options than you would have in a tort state.

You could also get personal injury protection insurance in a no-fault state, which would cover medical expenses not paid by regular insurance, lost wages, and even burial expenses.

The average time for settlement after a car accident is about one year, but since pain and suffering is a lingering, ongoing problem, it can sometimes stretch out the settlement process.

You should be careful to take your time and get all the necessary treatments and clearances from your doctor before finalizing the settlement.

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