PAYMENT FOR PAIN & SUFFERING: WHO WANTS WHAT, WHEN & WHY?

By Jeffrey O'Connell '51 and Rita James Simon.Santa Monica, Calif.: Insurors Press, Inc.,1972. 123 pp. $10.

Under the traditional fault doctrine a person injured in an automobile accident is entitled to recover the monetary value of his "pain and suffering" in addition to out-of-pocket expenses if and only if, he can establish that the other driver was at fault in the accident and that his fault caused the injuries. These two concepts, pain and suffering and fault, are at the heart of the current debate over no-fault insurance legislation. The basic principle of all no-fault plans (of which there are many) is the elimination of fault as a pre-requisite for recovery. Payment for out-of-pocket expenses is made by the injured party's own insurance carrier without regard to fault, but the accident victim in most cases gives up his right to compensation for pain and suffering.

The elimination of pain and suffering as compensable raises several legal issues to which lawyers and insurance companies have vociferously addressed themselves. But prior to the publication of this study no one has seriously attempted to measure the attitudes of actual accident victims towards compensation for pain and suffering. This book contains the results of a survey done by the authors in an attempt to measure such attitudes.

The people interviewed were Illinois accident victims who actually received compensation for pain and suffering from a particular Illinois insurance company during the year 1966. The conclusions of the study are interesting and provide additional information to the "no-fault" debate. The more interesting conclusions drawn by the authors are the following:

1. Prior to any accident the traffic victim little understood the concept of pain and suffering, nor did (s)he expect to be compensated for it;

2. Few accident victims during the process of settling a claim learn about their possible right to payment for pain and suffering, even if they are represented by a lawyer;

3. Payment for pain and suffering did not affect the victim's general attitude toward the accident (i.e. engender a feeling of satisfaction); and

4. Notwithstanding the above, accident victims want compensation for pain and suffering available regardless of fault.

Such findings will require some rethinking by the proponents of most no-fault plans. The authors suggest that the public be allowed to choose pain and suffering coverage under their nofault insurance by paying an additional premium. However, the question of what monetary value to Put on pain and suffering and who is to decide what that value should be is left open. Is an insurance company any better equipped than a jury to make that ultimate determination? Does an injured party then become adversary to his or her own insurance company because he or she disagrees with what the company says the pain and suffering is worth? The debate goes on ...

Mr. Slive is an attorney connected with theHanover law firm of Stebbins and Bradley.