A Washington traumatic brain injury settlement is calculated by documenting economic losses, placing a value on the harm that never appears on a receipt, subtracting the injured person’s share of fault, and then testing that total against the insurance actually available to pay it. The first two steps are questions of evidence. The last two are governed by Washington statutes. Our Seattle catastrophic injury lawyers build the record each step requires, because the step most often shortchanged is the one that carries the most money.
Why Future Losses, Not Past Bills, Drive the Number
The medical bills already in hand are only the beginning of a serious brain injury claim. The larger figures sit in the years ahead. Research summarized by federal health officials finds that among those still alive five years after a moderate to severe brain injury:
- 57% are moderately or severely disabled
- 55% do not have a job, though they were employed at the time of the injury
- 50% return to a hospital at least once
- 33% rely on others for help with everyday activities
Those figures come from a study of people who received inpatient rehabilitation, so they do not describe every brain injury. They do describe the population most often at the center of a serious claim, and they are what a life care planner and a vocational economist translate into dollars. They consider future medical treatment, rehabilitation, medication, attendant care, home modification, and lost earning capacity across a working lifetime.
Standard imaging is part of why that projection gets undervalued. A CT or MRI read as normal does not rule out a brain injury, and a claim priced off the imaging alone will miss the losses a family is already living with.
How Washington’s Comparative Fault Rules Change the Math
Washington allocates damages by comparative fault. RCW 4.22.005 provides that any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages “for an injury attributable to the claimant’s contributory fault,” but “does not bar recovery.” A person found 40% at fault therefore recovers 60% of the damages, and Chapter 4.22 RCW sets no percentage cutoff.
That is the general rule, and it has a hard edge. RCW 5.40.060(1) supplies a complete defense, but only where three things are true together:
- The injured person was under the influence of intoxicating liquor or any drug at the time of the occurrence;
- That condition was a proximate cause of the injury; and,
- The trier of fact finds the person more than 50% at fault.
Subsection (2) removes that defense in an action against a driver who was under the influence and whose condition was a proximate cause of the injury, so long as the injured person’s condition was not a proximate cause of the occurrence.
Two more features of the fault scheme matter in brain injury cases. First, RCW 4.22.015 defines fault to include an “unreasonable failure to avoid an injury or to mitigate damages,” a clause an insurer can press against a client who missed neurology appointments or stopped cognitive therapy. The same statute supplies the answer to it. Legal requirements of causal relation apply to contributory fault as well, and a comparison of fault must consider both the nature of the conduct and the extent of the causal relation between that conduct and the damages.
Second, RCW 4.22.070(1) makes each defendant liable for only a proportionate share, subject to two exceptions. Under subsection (1)(a), a party answers for the fault of another where both were acting in concert or where one was acting as an agent or servant of the party, which is how an employer answers for a driver. Under subsection (1)(b), if the trier of fact determines the injured person was not at fault, the defendants against whom judgment is entered are jointly and severally liable for the sum of their proportionate shares. In a case involving several vehicles or a road design claim, that finding can decide whether a verdict is collectable at all.
When Insurance Limits Set the Ceiling Instead of Damages
A damages figure is worth only what someone can pay. RCW 46.30.020(1)(a) requires most drivers to be insured under a liability policy with limits of at least the amounts in RCW 46.29.090. A driver may satisfy the requirement with one of the alternatives the statute allows, such as self-insurance, a certificate of deposit, or a liability bond in the same amounts.
RCW 46.29.090(1) sets those amounts.
For bodily injury to or death of one person in any one accident, the limit is not less than $25,000. Subject to that per-person limit, the figure is not less than $50,000 for bodily injury to or death of two or more persons, and not less than $10,000 for injury to or destruction of the property of others. A catastrophic brain injury can exhaust a minimum policy during the first week of hospitalization.
That is where underinsured motorist coverage decides the outcome. RCW 48.22.030(1) treats a vehicle as underinsured whenever all applicable liability limits total less than the damages the covered person is legally entitled to recover, so a driver who complied with the mandatory insurance law can still be underinsured against a severe injury. Under subsection (3), and except as to property damage, that coverage must be issued in the same amount as the insured’s third party liability coverage unless a named insured or spouse rejected all or part of it in writing.
Subsection (2) also carries exceptions. One removes coverage while a person operates or occupies a motorcycle or motor-driven cycle. Another removes it for injury in a vehicle owned or available for the regular use of the named insured or a family member, where that vehicle is not insured under the liability coverage of the policy. Washington’s insurance regulator describes the claim process after a crash with a driver who cannot cover the harm.
Finding every applicable policy is therefore part of the calculation, though not the whole of it. RCW 48.22.030(6) lets a policy provide that where an injured person has other similar insurance available under other policies, the total limits of all coverages will not exceed the higher of the applicable limits.
Deadlines and Payment Structure Shape What You Receive
Two more Washington rules operate at the end of the process. RCW 4.16.080(2) generally requires a personal injury action to be commenced within three years. However, deadlines are not always that simple, and brain injury is one of the reasons.
RCW 4.16.190 addresses a person who, when the cause of action accrued, was “incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.130 RCW.” For that person, the time of the disability is not part of the time limited for commencing the action. Whether that describes a particular person turns on that determination, so have the date checked rather than assumed.
The second rule is less widely known. RCW 4.56.260(1) applies when a verdict or award in an action based on fault includes future economic damages of at least $100,000. In that situation, the court or arbitrator shall, at the request of a party, enter a judgment providing for periodic payment of those damages in whole or in part. The court then asks each party for a proposal and selects one, with any changes the court deems proper, that in the court’s discretion and the interests of justice best provides for the future needs of the claimant. If the security the judgment requires is not posted within 30 days, the court enters a lump sum judgment instead. That rule reaches verdicts and awards rather than a settlement the parties negotiate between themselves, but it is one reason a headline number and the schedule on which money actually arrives are not the same thing.
Talk With a Seattle Brain Injury Lawyer Before You Accept a Number
An early offer is usually made before anyone has measured the future, and a brain injury is easy to measure too early. If you are still struggling with memory, concentration, sleep, headaches, or mood, our guide to brain injury symptoms explains what to document now, while it is still fresh. Contact us for a free case evaluation. You pay no attorney fees until we recover for you. We can meet you at home when travel is hard, and se habla español.
