Types of Money Damage Claims Against the Operator
of Another Motor Vehicle
Generally, most civil actions in Massachusetts that involve an automobile
accident are based on the allegations of negligence.
Put simply, negligence is the failure of another to use due care in the
operation of the motor vehicle with whom you had an accident. A claim against
another, however, is based upon two facets that insurance companies will
use in evaluating your claim: the issue of liability and the calculation
of damages. The liability element of the claim is where an insurance carrier
will assess who was at fault in the accident. While the allegations of
negligence against the driver concern the liability element of the claim,
there are a number of separate legal causes of action that concern the
Typically, in cases where serious injury has resulted, a plaintiff will
have claims for pain and suffering, which is defined above; negligent and/or
intentional infliction of emotional distress; and loss of consortium.
In order to successfully state a claim for negligent infliction of emotional
distress, a plaintiff must show more than just the subjective experience
of mental distress, grief, anger or humiliation; the plaintiff must prove
through objective evidence that he or she has been harmed. In other words,
the court will require the plaintiff to show that he or she sought treatment
from a medical expert. Courts will not allow a plaintiff to simply appear
in court and allege that he or she has experienced this type of damage.
You must have received medical treatment or produce a medical expert that
confirms that you have indeed suffered some type of mental anguish.
To prevail on a claim for intentional infliction of emotional distress,
a plaintiff must establish that the defendant intended to inflict emotional
distress, or knew or should have known that emotional distress was the
likely result of his conduct; that the defendant's conduct was extreme
and outrageous and beyond all possible bounds of decency; that the defendant's
actions were the cause of plaintiff's distress; and that the emotional
distress suffered by plaintiff was severe and of such a nature that no
reasonable person could be expected to endure it.
This is a very difficult allegation to prove. It typically requires
a showing that the defendant's operation of the vehicle at the time of
the accident was either intentional or in such a reckless manner, that
he or she should have known that the accident would result.
A plaintiff may also have a claim for loss of consortium in instances
where a family member or spouse is severely injured or dies as the result
of an automobile accident. Loss of consortium may be proven in the spousal
arena by showing that the relationship, both physically and emotionally,
has been damaged as a result of the accident. In the familial arena, parents
of a child or an adult child who is dependent on his parents for support
may have a claim for loss of consortium where the child has been seriously
injured against any person who is legally responsible for causing such
injury. (Mass. Gen. Law c. 231, Section 85X.)
Finally, a plaintiff may have a claim for wrongful death against the
operator of a motor vehicle where said person has operated his or her vehicle
negligently causing an accident which results in the death of another.
This claim must be asserted on behalf of the executor of the decedent's
estate. Typically, this claim is asserted in instances in which the defendant
has been criminally convicted of Driving Under the Influence ("DUI")
of alcohol. Once again, you will need an attorney to ensure that you have
properly asserted all the claims upon which you are entitled to recovery.
You should always seek advice and counsel of a competent attorney prior
to initiating any type of legal proceedings against another.
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