Is Pain and Suffering Compensation Possible if I am At-Fault?

Rescue workers tending to car accident victim at back of ambulance
Pain and Suffering Compensation in At-Fault Accidents. Caiaimage/Trevor Adeline / Getty Images

Here is the situation. You have just been in an automobile accident. You’ve suffered some injuries, nothing too serious, but you still needed some fairly substantial medical care and you are going to be laid up for at least a few days. And you hurt. In fact, the medical costs seem minor compared to the substantial pain you are feeling. You feel you are entitled to be compensated, not just for the doctor bills, but also for the agony you’re going through.

 There’s a problem, though. The person who caused the accident is you. And that brings up the obvious question: Am I entitled to pain and suffering compensation for an auto accident even if the accident is my fault?

What is “pain and suffering”?

We all know what it is to feel pain and to suffer. That’s no mystery. In law, however, the term “pain and suffering” has a specific meaning. In personal injury cases, such as ones involving car accidents, pain and suffering refers to a particular type of damages that a victim may be compensated for. Pain and suffering, in legal terms, is the physical, emotional, and mental distress you suffer as a result of the accident. This includes the physical pain from actual injuries (broken bones, burns, aches, bruises, etc.) as well as emotional pain, such as ?depression, or embarrassment from scarring or deformities. These damages, by the way, may be permanent or temporary, and may not become evident for some time following the accident that caused them.

 Pain and suffering are typically considered part of the “general damages” recoverable from an insurance company settlement or in a lawsuit. And an accident victim is certainly entitled to them if the accident is someone else’s fault. But what if the accident was your fault?

What your insurance company covers:

If you have been in an auto accident in which you are liable, your insurance carrier will pay you for your medical expenses and probably for your lost wages according to the specifics of your policy.

 But you will not be paid for your pain and suffering. Pretty simple, huh?

What the other party's insurance company covers:

Now things get a bit complicated. Let’s say you are in an auto accident and suffer damages, and the accident is partially your fault and partially the other driver’s fault. Can you collect against the other driver for pain and suffering? The answer is: it depends on where the accident occurred. If you are in a “pure comparative fault” or “modified comparative fault” state, you may be in luck. If you are in a “pure contributory negligence” state, forget it. Let me explain.

  • Pure contributory negligence states.

In a “pure contributory negligence” state, you will not be able to recover for any damages (including pain and suffering) if you are partially at fault, no matter how much or how little at fault you are. Even if it’s just 1%. Fortunately, there are only a very few states where pure contributory negligence is the law. Fortunately, that is, if you are not in one of them.

  • Pure comparative fault states.

In a “pure comparative fault” state, a party in an accident is liable for damages to the other party in proportion to their degree of fault. So let’s say, for example, that you are in an accident in which you are determined to be 80% at fault and the other driver is 20% at fault.

 In a pure comparative fault state, you are entitled to collect damages (including pain and suffering) against the other driver, but reduced to 20% of the total damages. There are currently about a dozen states that follow the pure comparative fault rule.

  • Modified comparative fault states.

All other states follow a “modified comparative fault” system. In these states, if you are more at fault (50% in some states, 51% in others) for an accident than the other driver, then you cannot collect any damages against that driver. If, on the other hand, the other driver is more at fault, you can collect damages (including pain and suffering). However, your damages will be reduced by your degree of fault, just like in the pure comparative fault states.

The above explanations of contributory negligence and comparative fault are general in nature, and rules vary from state to state.

 Just to make things a bit more confusing, South Dakota follows a singularly unique form of comparative negligence. So make sure you check out the laws in your own state for the details.