Written and reviewed by Josh Kohanim, Esq., California Bar No. 328609 · Reviewed
In this guide
Once treatment is far enough along that somebody has raised a number, the question becomes what that number should include and what caps it. How the injury itself is proved is covered in how a mild traumatic brain injury is proved.
Why there is no average settlement
Published brain injury settlement figures come from cases that were reported, which skews high, or from a firm's own file that is nothing like yours. Two clients with the same diagnosis can end six figures apart because one was hit by a trucking company with a large policy and the other by a driver carrying the state minimum.
What is knowable is the structure. Every recovery is the sum of categories a jury could award, discounted by risk, then capped by what can be collected.
What you can be paid for
Civil Code section 3333 sets the outer measure for any tort, the legal term for an injury claim like this one: the amount that will compensate for all the detriment proximately caused. The California Civil Jury Instructions, abbreviated CACI, then tell the jury what each item requires.
| Item | What must be proved | Instruction |
|---|---|---|
| Past medical expenses | Reasonable cost of reasonably necessary care received | CACI 3903A |
| Future medical expenses | Reasonable cost of care reasonably certain to be needed | CACI 3903A |
| Past and future lost earnings | Income lost to date, and reasonably certain future loss | CACI 3903C |
| Lost earning capacity | Reasonably certain reduction in the ability to earn | CACI 3903D |
| Household services | Reasonable value of services you would have provided | CACI 3903E |
Noneconomic damages sit in their own instruction. CACI No. 3905A covers physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, grief, anxiety, and emotional distress, and tells the jury plainly that no fixed standard exists for deciding the amount. For future pain and suffering, the plaintiff must prove they are reasonably certain to suffer it.
Future care and the life care plan
A life care plan is a document, not a category. It projects everything a person will need for the rest of their life, with a unit cost, a frequency, and a duration on each line: neurology visits, cognitive and vestibular therapy, medication, case management, attendant care, transportation, equipment, and home modification. A life care planner builds it from what the treating physicians recommended.
The plan has to track the treating physicians because of the standard in CACI No. 3903A: reasonably necessary care the plaintiff is reasonably certain to need. A line nobody prescribed is a line the defense strikes, and striking it damages every line that survives. The strongest plans our attorneys see are the shortest, because every entry traces to a dated physician's note.
Lost earning power and help at home
Two instructions cover work, and the difference matters. CACI No. 3903C is lost earnings, the income gone to date and reasonably certain to be lost going forward. CACI No. 3903D is lost earning capacity, the loss of the ability to earn. It asks the jury to compare what the plaintiff could reasonably probably have earned without the injury against what they can still earn, to consider career choices they had a reasonable probability of achieving, and it states that no work history is necessary.
That last clause is why a brain injury to a nineteen year old or a parent who left the workforce is not a small case. The claim is the earning ability, not the last pay stub. CACI No. 3903E adds the loss of the ability to provide household services, measured by the reasonable value of what you would have been reasonably certain to provide. Childcare, cooking, driving, and home repair are routinely left out of settlement demands.
Why future costs are discounted to today
Present cash value is the amount that, invested today, would provide a future sum. CACI No. 3904A assigns the work: the defendant must prove, through expert testimony, the present cash value of the plaintiff's future economic damages, and the jury decides that value on all the evidence. A defense that wants the discount must present that testimony.
Noneconomic damages are the exception. CACI No. 3905A directs the jury to determine future noneconomic damages in current dollars paid at the time of judgment, and states that the amount should not be further reduced to present cash value, because that reduction is performed only on economic damages. Future pain and suffering is not discounted. Future medical care and future lost earnings are.
The insurance caps what you can collect
Policy limits are the maximum an insurer will pay under a policy, and in a serious brain injury case they are usually the real number. Adding defendants helps only partly. Civil Code section 1431.2(a) provides that in any personal injury action based on comparative fault, each defendant's liability for non-economic damages is several only and not joint, in direct proportion to its own percentage of fault. A defendant assigned 20 percent of the fault pays 20 percent of the pain and suffering, whatever the others can pay.
| Layer | What it is | What has to happen first |
|---|---|---|
| Liability policy | The at-fault party's bodily injury coverage | Liability accepted or proved |
| Additional defendants | Employers, contractors, property owners | Their own share of fault established |
| Underinsured motorist | Your own auto coverage for the shortfall | The liability limits exhausted by payment |
| Uninsured motorist | Your own coverage when there is no policy | Notice and proof under your policy |
| Medical payments coverage | A medical benefit on your own policy that pays from the first dollar of bills | Bills submitted; repayment terms vary |
Underinsured motorist coverage has its own deadline
Insurance Code section 11580.2 governs this coverage in California, and four of its rules decide brain injury cases. Subdivision (p)(2) defines an underinsured motor vehicle as an insured vehicle covered for less than the uninsured motorist limits carried by the injured person, so the comparison is to your own limits, not your medical bills. Subdivision (p)(7) requires the coverage in every bodily injury policy that provides uninsured motorist coverage, issued or renewed on or after July 1, 1985.
Subdivision (p)(3) states the coverage does not apply until the bodily injury liability limits applicable to all insured vehicles causing the injury are exhausted by payment of judgments or settlements, with proof submitted to your insurer. Subdivision (p)(4) caps your insurer's exposure at your underinsured motorist limits less what you already received. Subdivision (p)(6) requires giving your insurer a copy of the complaint, the paper that starts a lawsuit, by personal service or certified mail if you sue the at-fault driver.
When the money is not there
- Minimum limits and no other defendant. One at-fault driver with a small policy, no employer, no vehicle owner, and no road defect means the claim is worth the policy.
- No underinsured motorist coverage. It can be waived in writing, and many Los Angeles drivers have waived it without knowing.
- Several liability on the noneconomic side. Under Civil Code 1431.2, a defendant with a small fault share pays a small share of the pain and suffering, even if the co-defendant is insolvent.
- Future care that nobody prescribed. A plan built on what a person might benefit from, rather than what a physician ordered, fails the reasonably certain standard.
One more item reduces the check without reducing the case. A lien is a right to be repaid out of your recovery, held by a health plan, a provider treating on credit, or a government program. Liens are negotiated at the end, and how that negotiation is run changes what you keep.
One of our concussion cases shows what the coverage and the proof together can produce. The client never lost consciousness, the insurer's first offer was $100,000, and the case resolved on the eve of trial.
Truck collision, concussion
Sideswiped on the freeway by a semi-truck. Settled on the eve of trial.
Prior results do not guarantee a similar outcome. Every case depends on its own facts, injuries, and insurance coverage. Amounts shown are gross recoveries before attorney's fees, costs, and medical liens.
What moves the value of the case
A brain injury case is worth what you can prove, times the risk of proving it, capped by what can be collected. What moves those three is a complete treatment record, a life care plan tied to physician orders, an earning capacity analysis, and a coverage investigation run in month one.
Pull your declarations page, the summary sheet at the front of your auto policy, and look for the underinsured motorist limit today. If symptoms have run past three months, our guide to post-concussion syndrome covers that stage. If the injury reshapes a life, our Los Angeles catastrophic injury page goes further, and the full claim is on our Los Angeles brain injury attorney page.