In personal injury cases, there are two basic forms of “damages” a client may recover: economic and non-economic damages. Some lawyers will refer to them as “general” and “special” damages, but the correct terms are economic and non-economic damages. Most wrongful death damages are determined by law using the criteria defined earlier (see the ORS 30.020 damages described above). These two types of damages must be understood as well.
“Economic damages” is the compensation you can receive in place of any money you have lost due to the death of your loved one. Non-economic damages are more abstract, and are often referred to as “pain and suffering.”
ORS 31.710 limits the amount that may be awarded for non-economic damages in any injury or death case in Oregon. The Oregon Supreme Court has found this law to be unconstitutional as it applies to injury cases, but has upheld it when applied to wrongful death cases. The absurd result of this is that non-economic damages are limited to $500,000 in a wrongful death case, even though there is no limit in an injury case that did not result in death.
“Non-economic” damages are subjective, non-monetary losses, such as the pain and suffering endured after the injury but before death, the loss of care, comfort, and companionship, and so on. This $500,000 limit is one reason why your lawyer may recommend bringing the case in another state or under Federal law (instead of state law) – the change of venue may allow for a higher award. However, in most deaths that occurred in Oregon, neither of these will be possible, so the $500,000 limit on non-economic damages often applies.
Because of this, it is necessary to separate “economic” and “non-economic” damages, even in a wrongful death case. “Economic” damages are objectively verifiable monetary losses, such as expenses charged for medical bills. This also includes the loss of money from earnings due to the person not being able to work anymore. Economic damages are not limited. This means that after the death of someone who had a high earning capacity, such as a surgeon, the beneficiaries could receive a substantial sum of economic damages, while the beneficiaries after the death of a person with less earning capacity would typically receive far less.
Because the insurance company defending the claim knows that $500,000 is the maximum recoverable for non-economic damages, they will usually make an offer of even less than that. Since the most a jury could ever make them pay at trial would be $500,000, they don’t have much to lose by only offering $350,000 or $400,000. After all, if they win at trial they may have to pay less than that, but if they lose, their maximum payout is only $500,000.
But remember, that limit only applies to non-economic damages. Economic damages can be awarded at whatever level can be proven to a jury. Because of this, hiring a good economist can be especially important. Now let’s take a look at the type of compensation available according to the law, and determine which of them are “economic” and which are “non-economic.”
- Charges for medical services are economic damages.
- Charges for burial and memorial services are economic damages.
- Compensation that the decedent would have been entitled to for disability, pain, and suffering during the period between injury to the decedent and the decedent’s death are non-economic damages.
- Compensation for “pecuniary loss” to the decedent’s estate is complicated because there is much that can fall under “pecuniary loss.” The loss of earnings (minus what the decedent would have spent on himself or herself) is economic damages. The loss of dating advice to the decedent’s children is going to be non-economic damages. There is much that falls in between. If an expert can testify that a certain dollar figure has been reached based on facts and accepted economic theory, then you can argue that it is economic damages, and therefore not susceptible to the $500,000 cap. But expect the insurance company on the other side to argue that the amount is speculative, not objective, and therefore should be treated as non-economic damages.
- Compensation for the loss of the decedent’s “society, companionship and services” to the decedent’s spouse, children, stepchildren, stepparents, and parents are split. The loss of society and companionship are non-economic damages. The loss of services may be able to be quantified by an economist in an objective manner that would render them economic damages.
- Punitive damages that the decedent would have been entitled to had the decedent lived are neither economic nor non-economic, and are described in the following section.
Punitive damages may be recovered in some wrongful death cases. Punitive damages are widely misunderstood, largely due to the McDonalds coffee case. Many people are under the false impression that punitive damages are a road to riches.