When tragedy strikes, you deserve to understand your rights. After a motorcyclist suffers an injury–whether its due to negligence or recklessness of another person—he or she will likely want to know what damages can be recovered.
While an injured person is entitled to recover damages caused by another’s wrongful actions, there is no magic formula or set amount for a particular type of injury or incident. To begin the compensation claim process, two critical questions must be considered:
1) Is the other person liable for the crash?
2) If so, how much is the other person responsible to pay?
Establishing Your Right to Compensation
Sometimes determining who is responsible for a crash is a simple matter. Other times it is not. Some cases require significant legal analysis, investigation, and even the hiring of expert witnesses (such as accident reconstructionists) to determine who was at fault.
Agreeing on how much the at-fault person (or his or her insurance company) is required to pay can be a challenge as well. The parties very seldom agree about what the case is actually worth.
If the other person is not found to be 100 percent liable for the crash, the injured motorcyclist may still have the right to compensation. If the motorcyclist is found partially liable, he or she may recover damages, minus the percent of damages caused by the motorcyclist’s own negligence, so long as the motorcyclist is found to be 50 percent or less at fault. However, if the motorcyclist is determined to be more than 50 percent at fault, he or she will not be able to recover for the negligence of others.
Types of Damages
Ordinary damages are “compensatory” damages. They are broken down into two categories: “economic” and “non-economic.”
Economic damages are easier to calculate, in large part, because the damages are tangible and identifiable. Examples include medical expenses, property damage and lost wages.
Non-economic damages, on the other hand, can be challenging to prove. A “pain and suffering” award compensates the injured motorcyclist for intangible things such as the physical, mental and emotional pain and distress of having experienced the crash and the resultant injuries.
The Ohio Legislature has set “caps” on pain and suffering awards in certain types of cases. So depending on the circumstances of the particular case, there may be a maximum dollar amount that an injured person may recover.
A third category of damages is “punitive” damages. This type of compensation may be available when extreme negligence or malicious conduct causes harm. Punitive damages are intended to punish the defendant and deter similar action in the future.
Motorcycle passengers have the same rights as motorcycle operators to compensation for their injuries. If the operator is at fault (or partially at fault) in a crash, the passenger may have the right to recover from the operator. The passenger may also recover from any other drivers who are responsible for the crash.
Another issue that can affect a claim is “subrogation.” Subrogation gives a third party (usually the motorcyclist’s health insurance company) the right to stand in the motorcyclist’s shoes and proceed against the negligent person as though that party was the owner of the injury claim. Subrogation allows the health insurer to recover the amount it paid for the motorcyclist’s medical treatment by taking it out of the motorcyclist’s compensation. The health insurer may also have a right of reimbursement from the motorcyclist if the motorcyclist obtains the compensation directly. This is sometimes called a “lien” against the injury claim.
Problems can arise when the amount demanded by the health insurance company exceeds the amount available under the negligent party’s liability insurance. There are legal arguments that can be made to get the health insurance company to reduce its lien amount, however, legal assistance is often necessary to navigate these issues.
As with all cases, there is a statute of limitations for filing a motorcycle compensation claim. A negligence claim must generally be brought within two years of its accrual.