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When one person’s negligence injures another person, the injured person has the right to recover monetary compensation for the damages they incur.  The term damages has two parts. One part of damages are the economic losses (lost income-medical expenses etc.).  The second part are the non-economic losses (loss of enjoyment of life, disfigurement, pain and suffering etc.).   A more complete discussion of damages can be found in our discussion of Idaho personal injury law basics.

A Legislative Mistake

Succumbing to lobbying pressure from big dollar interests, however, in 1987 the Idaho Legislature adopted a bad idea.  In 2003 the legislature doubled down on that bad idea.  That bad idea was imposing an arbitrary limit on non-economic damages. This limit is called the “cap.” In 1987, the legislature set the initial cap on damages at $400,000.00.  In 2003, the legislature reduced it to $250,000.00.  The cap idea was part of the so-called tort reform efforts. The whole tort-reform movement, however, is based on a series of myths and untruths about the civil justice system.

Tort reform laws, in Idaho and elsewhere, only have three goals:

  • To make it more difficult for injured people to file a lawsuit;
  • To make it more difficult for injured people to obtain a jury trial; and
  • To  limit the amount of money injured people receive in a lawsuit.

Very few cases have high non-economic damages. Idaho’s law added another injury on top of those already suffered by the most unfortunate people.

Real-World Examples Of Non-Economic Losses

Examples make the fact the cap hurts those already hurt the most easier to see.  Think about a 7-year-old child made quadriplegic because the driver of an 18-wheel truck ran over her family’s minivan.  She would get pennies a day to pay for her loss of an ordinary life.

Other examples of catastrophic non-economic damages can be found.  It would include the losses faced when  a trucker asleep at the wheel kills your first born child. Or you lose your arm or a leg or both because of a carelessly constructed balcony. They are there when a drunk driver crashes into you and you end up spending your life confined to a wheelchair.  Or perhaps the slipshod electrician whose work results in you going through life with disfiguring burns of the face and torso.  These losses are also there when the insurance company refuses to pay for needed medical care leading to the unnecessary death your mother, father or spouse.   These true tragedies are the cases where the non-economic losses are the highest.

Non-Economic Damages Caps Are Bad For Ordinary People

A deeper look at the law helps explain the bad idea more fully.  We can start by looking a bit more closely at the losses for which an injured person has the right to recover.     Under Idaho law a jury is instructed to award the following damages proven in the case:

 A. Non-Economic damages
                      1. The nature of the injuries;
                      2. The physical and mental pain and suffering, past and future;
                      3. The impairment of abilities to perform usual activities;
                      4. The disfigurement caused by the injuries;
                      5. The aggravation caused to any preexisting condition.
B. Economic damages
                      1. The reasonable value of necessary medical care received and expenses incurred as a result of the injury and the present cash value of medical care and expenses reasonably certain  and necessary to be required in the future;
                      2. The reasonable value of past lost earnings lost as a result of the injury;
                      3. The present cash value of the future earning capacity lost because of the injury, taking into consideration the earning power, age, health, life expectancy, mental and physical abilities,  habits, and disposition of the plaintiff, and any other circumstances shown by the evidence.
                      4. The reasonable value of necessary services provided by another in doing things for the plaintiff, which, except for the injury, the plaintiff would ordinarily have performed; and
                      5.  Any other specific item based upon the evidence.    

Economic Losses

Economic losses are pretty straight-forward.  For example, the easiest of these is past medical expenses.  That includes all that were actually and reasonably incurred because of the injury.  There is no dollar limit on these costs.

Another, somewhat more difficult component of economic loss is “future medical expenses.”  This one includes those likely to be incurred because of the injury.  It is plaintiff’s burden to prove the existence of such expenses. Unfortunately insurance companies hire biased physicians to perform hired medical examinations.  These opinions the insurance companies buy can make proving future damages difficult.  That is true even when your own doctor believes they will be coming.

Another component of economic loss is lost income.  When a person regularly works for X dollars an hour for Y hours a day and has missed Z days of work such losses are easy to calculate.  But if a person is a business owner who missed a meeting that may have helped create a relationship that could have led to business, such a loss is difficult to prove.   In fact, anyone like a commission salesperson or even a painter or other contractor has difficulties in proving all their losses.  Providing enough proof to take such damages outside the “realm of speculation” is sufficient for a plaintiff to recover under the law.  However, you must persuade the jury (or insurance adjuster) the claimed loss is an actual loss.

Non-Economic Losses

On the non-economic side, however, no matter what a jury decides, an injured person’s claim is arbitrarily limited.  The Idaho  Legislature’s actions has taken the evaluation of damages away from the citizens. Admittedly, non-economic losses by their nature are not readily or easily quantifiable.  But to the injured person, they are real losses.

It also makes no sense either in light of other juror powers.  For example, we trust juries to decide whether a convicted criminal should be put to death for their actions.  That is a far greater power than one to award money damages.  It is also important to recognize that a trial judge always has a chance to evaluate a jury award to rein in any actual “run-away jury” award.  But, even though they can never know the details of the case in which they have pre-judged the losses, the legislature imposed its arbitrary limitations on Idaho citizens.

The Question Of Idaho’s Non-Economic Damages Cap’s Constitutionality

By application of any straight forward logic, the cap statute should be considered unconstitutional.  The United State Constitution’s 7th Amendment and Idaho’s own Constitution seem to preclude such a law.  Other state legislatures have passed similar laws.  Many state supreme courts have rejected such indiscriminate caps as unconstitutional.  Idaho’s court unfortunately did not find that to be true. Though the one case that the Court has considered did not a raise a number of important points about thecCap’s constitutionality.  So there  still is some hope that the Idaho Supreme Court will be given a chance to evaluate the cap again in the future,

The Cap Causes Real Problems in Litigation

Such caps are most damaging to non-working people such as homemakers or children. This is because such citizens do not have a good lost wages claim.  The caps also cause practical problems in getting cases settled.  Insurance companies reason that instead of paying 100% of the amount of their potential exposure they can risk a trial.   This is because a jury might award less.  And they can impose pain on a plaintiff in dealing with the costs of going to trial.  It is just a reality of their negotiating tactics.

Being Thankful For The Little Things

There are two small things that make Idaho’s version of damages caps not as evil as some versions.  First, the 1987 legislature included an adjustment to the cap. The cap increases based on the increase in the average annual wage change as calculated in the workers compensation world.  The specific calculation is available online.  And, if a plaintiff can show the person who caused the injury acted recklessly or intentionally, as opposed to being merely negligent, then the damage cap does not apply.