Idaho Law Blog

            As Idaho attorneys and Boise lawyers, we are often asked what “damages can I get in a lawsuit?”  Some ask, “in a personal injury settlement, what damages am I entitled to?”  In medical malpractice cases, claimants question, “what categories of damages can the jury award money for?”  Clients in product liability cases inquire “what can I get money damages for?”  Here are some basic answers and bullet points to these questions on damages under Idaho law. 

            In Idaho, in medical malpractice, product liability, and personal injury cases, the law allows for two general types of money damages: (1) economic damages; and (2) non-economic damages.  The first category, economic damages, are your hard, out of pocket damages, provable with a receipt, so to speak, that were caused by the negligence of the defendant.  These include past damages, for things like medical care, attendant care, miscellaneous of pocket expenses, and loss of income, and future damages, for medical care, attendant care, loss of income.  The other category, non-economic losses, are the more intangible losses, sometimes referred to as pain and suffering or loss of enjoyment of life.  You don’t have receipts for these.  They are the human toll the defendant’s negligence has taken on your, your family, and loved ones.  They are the value of living with the consequences of preventable harm, sometimes permanently, forever.  There is no specific formula by law for non-economic damages, and it is what the jury determines is just.  

            The official Idaho Jury Instructions spell out money damages as follows:

                                                      IDJI 9.01 – Damage instruction for injuries to plaintiff – general case

If the jury decides the plaintiff is entitled to recover from the defendant, the jury must determine the amount of money that will reasonably and fairly compensate the plaintiff for any damages proved to be proximately caused by the defendant’s negligence.

            The elements of damage the jury may consider are:

            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 the past 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 the present cash value of such services reasonably certain to be required in the future];

            5.         [Any other specific item based upon the evidence.]

            Whether the plaintiff has proved any of these elements is for the jury to decide.


            In wrongful death cases, for loss of a loved one, the official Idaho Jury Instructions define damages as follows: 

                                                      IDJI 9.05 – Damages for wrongful death

            If the jury decides the plaintiff is entitled to recover from the defendant, the jury must determine the amount of money that will reasonably and fairly compensate the plaintiff for any damages proved to be proximately caused by defendant’s negligence.

            The elements of damage the jury may consider are:

            1.         The reasonable cost of the decedent’s funeral.

            2.         The reasonable value of necessary medical care and expenses incurred prior to the decedent’s death.

            3.         The reasonable value to the plaintiff of the loss of the decedent’s [services] [training] [comfort] [conjugal relationship] and [society] and the present cash value of any such loss that is reasonably certain to occur in the future, taking into consideration the life expectancy of the plaintiff, the decedent’s age and normal life expectancy, habits, disposition and any other circumstances shown by the evidence.

            4.         The plaintiff’s loss of financial support from the decedent, and the present cash value of financial support the decedent would have provided to the plaintiff in the future, but for the decedent’s death, taking into account the plaintiff’s life expectancy, the decedent’s age and normal life expectancy, the decedent’s earning capacity, habits, disposition and any other circumstances shown by the evidence.

            Death is inevitable.  Although the law compensates for the untimeliness of a death caused by another, no damages are allowed for grief or sorrow.

            [There can be no recovery for any pain or suffering of the decedent prior to death.]


            It should also be noted that, in Idaho, non-economic damages for pain and suffering and loss of enjoyment of life are capped, currently at about $375,000 per claimant.  This cap can be removed and lifted if the jury determines that the defendant’s conduct was “reckless,” i.e., that the defendant knew or should have known of a high risk of harm but did the act or omission anyway. The Idaho Code section on this is as follows: 

6-1603.  LIMITATION ON NONECONOMIC DAMAGES. (1) In no action seeking damages for personal injury, including death, shall a judgment for noneconomic damages be entered for a claimant exceeding the maximum amount of two hundred fifty thousand dollars ($250,000); provided, however, that beginning on July 1, 2004, and each July 1 thereafter, the cap on noneconomic damages established in this section shall increase or decrease in accordance with the percentage amount of increase or decrease by which the Idaho industrial commission adjusts the average annual wage as computed pursuant to section 72-409(2), Idaho Code.

(2)  The limitation contained in this section applies to the sum of: (a) noneconomic damages sustained by a claimant who incurred personal injury or who is asserting a wrongful death; (b) noneconomic damages sustained by a claimant, regardless of the number of persons responsible for the damages or the number of actions filed.

(3)  If a case is tried to a jury, the jury shall not be informed of the limitation contained in subsection (1) of this section.

(4)  The limitation of awards of noneconomic damages shall not apply to:

(a)  Causes of action arising out of willful or reckless misconduct.

(b)  Causes of action arising out of an act or acts which the trier of fact finds beyond a reasonable doubt would constitute a felony under state or federal law.


            In certain cases, additional money damages may be awarded, if certain criteria are met and the court allows the jury to consider them, to punish the defendant, called “punitive damages” under Idaho Statute:

6-1604.  LIMITATION ON PUNITIVE DAMAGES.(1) In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted.

(2)  In all civil actions in which punitive damages are permitted, no claim for damages shall be filed containing a prayer for relief seeking punitive damages. However, a party may, pursuant to a pretrial motion and after hearing before the court, amend the pleadings to include a prayer for relief seeking punitive damages. The court shall allow the motion to amend the pleadings if, after weighing the evidence presented, the court concludes that, the moving party has established at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. A prayer for relief added pursuant to this section shall not be barred by lapse of time under any applicable limitation on the time in which an action may be brought or claim asserted, if the time prescribed or limited had not expired when the original pleading was filed.

(3)  No judgment for punitive damages shall exceed the greater of two hundred fifty thousand dollars ($250,000) or an amount which is three (3) times the compensatory damages contained in such judgment. If a case is tried to a jury, the jury shall not be informed of this limitation. The limitations on noneconomic damages contained in section 6-1603, Idaho Code, are not applicable to punitive damages.

(4)  Nothing in this section is intended to change the rules of evidence used by a trier of fact in finding punitive damages.


            As each case is unique, contact Mahoney Law at our headquarters in Boise, from where we serve all of Idaho, to discuss what money damages you might be entitled to in your personal injury claim, product liability case, or medical malpractice case.   

If you were hit by a vehicle without adequate insurance, you may have an Underinsured Motorist Claim.  If you were in an accident with an automobile without insurance, you may have an Uninsured Motorist Claim.  This will depend on whether and at what monetary limits you have these insurance coverages under your own motor vehicle insurance policy or the policy covering the vehicle in which you were struck.  Idaho has several statutes on underinsured and uninsured motorist coverage. For example: 

41-2502.  Uninsured motorist and underinsured motorist coverage for automobile insurance— exceptions. (1) Except as otherwise provided in subsection (2) of this section, no owner’s or operator’s policy of motor vehicle liability insurance that is subject to the requirements of section 49-1212(1) or (2), Idaho Code, shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death as set forth in section 49-117, Idaho Code, as amended from time to time, under provisions approved by the director of the department of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured and underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.

(2)  A named insured shall have the right to reject either or both uninsured motorist coverage or underinsured motorist coverage, which rejection must be in writing or in an electronic record as authorized by the uniform electronic transactions act, chapter 50, title 28, Idaho Code, and such rejection shall be effective as to all other insureds and named insureds; and after which such rejected coverage need not be provided in or supplemental to a renewal or replacement policy issued by the same insurer or an affiliate of that insurer.

(3)  Prior to the issuance of any new policy or the first renewal or replacement of any existing policy of motor vehicle liability insurance with an effective date on or after January 1, 2009, a named insured shall be provided a standard statement approved by the director of the department of insurance, explaining in summary form, both uninsured and underinsured motorist coverage, and the different forms of underinsured motorist coverage that might be available from insurers in Idaho. 

(4)  The provisions of this section shall not apply to policies of motor vehicle liability insurance for coverage on all-terrain vehicles, utility type vehicles, specialty off-highway vehicles or motorbikes as those terms are defined in section 67-7101, Idaho Code.

41-2503.  Definitionsand application. (1) For the purposes of uninsured motorist coverage, the term "uninsured motor vehicle" shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.

(2)  For purposes of underinsured motorist coverage, subject to the further definitions, terms and conditions of such coverage, the term "underinsured motor vehicle" means a motor vehicle that is a self-insured motor vehicle, or a motor vehicle that is covered by a policy of motor vehicle liability insurance or an indemnity bond, with limits for bodily injury or death at least equal to those limits set forth in section 49-117, Idaho Code.

(3)  Except as provided in subsections (1) and (2) of this section, the terms and conditions of any policy of motor vehicle liability insurance providing uninsured motorist coverage or underinsured motorist coverage are not altered or amended.

Idaho also has rules on when an insurance company may be required to pay attorney fees if and when a claim that is justly due is not paid in a timely manner: 

41-1839.  Allowance of attorney’s fees in suits against or in arbitration with insurers. (1) Any insurer issuing any policy, certificate or contract of insurance, surety, guaranty or indemnity of any kind or nature whatsoever that fails to pay a person entitled thereto within thirty (30) days after proof of loss has been furnished as provided in such policy, certificate or contract, or to pay to the person entitled thereto within sixty (60) days if the proof of loss pertains to uninsured motorist or underinsured motorist coverage benefits, the amount that person is justly due under such policy, certificate or contract shall in any action thereafter commenced against the insurer in any court in this state, or in any arbitration for recovery under the terms of the policy, certificate or contract, pay such further amount as the court shall adjudge reasonable as attorney’s fees in such action or arbitration.

(2)  In any such action or arbitration, if it is alleged that before the commencement thereof, a tender of the full amount justly due was made to the person entitled thereto, and such amount is thereupon deposited in the court, and if the allegation is found to be true, or if it is determined in such action or arbitration that no amount is justly due, then no such attorney’s fees may be recovered.

(3)  This section shall not apply as to actions under the worker’s compensation law, title 72, Idaho Code. This section shall not apply to actions or arbitrations against surety insurers by creditors of or claimants against a principal and arising out of a surety or guaranty contract issued by the insurer as to such principal, unless such creditors or claimants shall have notified the surety of their claim, in writing, at least sixty (60) days prior to such action or arbitration against the surety. The surety shall be authorized to determine what portion or amount of such claim is justly due the creditor or claimant and payment or tender of the amount so determined by the surety shall not be deemed a volunteer payment and shall not prejudice any right of the surety to indemnification and/or subrogation so long as such determination and payment by the surety be made in good faith. Nor shall this section apply to actions or arbitrations against fidelity insurers by claimants against a principal and arising out of a fidelity contract or policy issued by the insurer as to such principal unless the liability of the principal has been acknowledged by him in writing or otherwise established by judgment of a court of competent jurisdiction.

(4)  Notwithstanding any other provision of statute to the contrary, this section and section 12-123, Idaho Code, shall provide the exclusive remedy for the award of statutory attorney’s fees in all actions or arbitrations between insureds and insurers involving disputes arising under policies of insurance. Provided, attorney’s fees may be awarded by the court when it finds, from the facts presented to it that a case was brought, pursued or defended frivolously, unreasonably or without foundation. Section 12-120, Idaho Code, shall not apply to any actions or arbitrations between insureds and insurers involving disputes arising under any policy of insurance.

These are just several of the statues and rules that come into play when evaluating a uninsured motorist claim or an underinsured motorist claim.  Mahoney Law PLLC of Idaho provides lawyer, attorney, law firm, and legal counsel services for such matters involving personal injuries in the underinsured and uninsured motorist insurance claim context.  We provide injury victims help with collecting on underinsured and uninsured motorist claims.  We will evaluate your insurance situation to determine if you might be eligible to file a pesonal injury claim for underinsurd motorist coverage or uninsured motorist insurance benefits.  Call now for a free, no obligation, confidential review.  (208) 345-6364

Underinsured Motorist Insurance Claims (UIM) and Uninsured Motorist Insurance Claims (UM) involve you as an insured who purchased insured coverage making a claim against your own insurance company.  These claims may arise when the opposing driver who caused a motor vehicle accident or motor vehicle collision either does not have enough insurance, referred to as an underinsured motorist claim, or is not insured at all, referred to as an uninsured motorist claim.  If you purchased these coverages, you may be able to make a claim under your own insurance policy to make up for the fact that the opposing driver was not sufficiently insured relative to the magnitude of your injuries and damages.  


In such a case, an Idaho insurance attorney will assist you in submitting the insurance claim to your insurance company by way of an appropriate proof of loss submission.  The insurance claim lawyer will submit proof of liability (that the opposing driver was at fault, such as police report documentation), as well as your injuries (such as medical records) and your damages (such as medical bills, loss of income, as well as pain and suffering).  Under Idaho insurance law, your insurance company only has a limited amount of time within which to properly pay the amount justly due to you under your insurance policy.  


If your insurance company fails to tender the amount justly due, an Idaho insurance claim law firm may have to step in and file a lawsuit against the insurance company for both breach of contract and for the tort of insurance bad faith under Idaho law.  If successful, you may be able to actually recover attorney fees given the restrictive time deadlines that apply to insurance companies and given that your insurance company must deal with you in good faith, in accordance with the policy terms.  


To assist the Idaho insurance claim attorney in evaluating your potential underinsured motorist (UIM) or uninsured motorist (UM) insurance claim, you will want to have a copy of your insurance policy available.  You can get this either from your insurance agent, or from your insurance company. They should be able to quickly get you a copy for your insurance claim lawyer.  Also, check your insurance card mailed to you by your insurance company along with any policy declarations pages you received.  These may show your insurance claim law firm if you have underinsured (UIM) or uninsured (UM) motorist coverage and, if so, what the dollar amount of your insurance is.  


Mahoney Law is an Idaho insurance claim law firm. We work as an Idaho insurance claim lawyer to obtain you the benefits owed under your policy. We assist policy holders with wrongfully denied insurance claim.  Our Idaho insurance attorney will review your potential underinsured motorist (UIM) or uninsured motorist (UM) insurance claim free of charge. There are no fees unless we are successful as we work on a contingency fee basis.  Call Mahoney Law of Idaho now for a free, no obligation, confidential insurance claim review. 208-345-6364.  

Traumatic Brain Injury (TBI) from an injury accident may necessitate hiring a traumatic brain injury lawyer.  Brain injuries from personal injury accidents can be significant and life changing, requiring top legal counsel.  We serve as a highly experienced traumatic brain injury attorney representing TBI victims in brain injury cases and brain injury insurance claims throughout Idaho in claims involving substantial money damages.  Mahoney Law has experience and a proven track record of success in helping those with traumatic brain injuries win their TBI cases or settle their TBI insurance claims as a brain injury law firm in Idaho.  We are professional and always fully prepared for trial on brain injury cases.  We offer free and confidential brain injury consultations and no obligation brain injury case reviews.  Our traumatic brain injury TBI law firm practice here in Idaho is focused on getting our clients the money damages or insurance benefits they deserve.  We recognize that traumatic brain injuries are very serious and we work to combat outdated thinking and medical prejudices against these life-altering brain injuries.  If you are looking for a top brain injury attorney here in Idaho, please consider our personal injury law firm. 


Traumatic Brain Injuries (TBIs) can be caused by direct trauma or merely from the movement of the brain inside the head.  Medical professionals now recognize that direct, blunt force trauma is not necessary to sustain a TBI.  A concussion is a form of traumatic brain injury, a concussion TBI.  It is also now well understood that traumatic brain injuries may not show up on imaging scans such as MRIs.  While hemorrhaging in the brain may be visible, many TBIs do damage at a level not detectable by current imaging technology.  Traumatic brain injuries may require months or even years of treatment before maximum medical improvement is reached, treatment by specialists such as a concussion clinic, out-patient brain injury programs, physical medicine experts, neurologists, speech and balance therapists, physical therapy, and neuropsychology experts.  Traumatic brain injuries (TBI’s) can lead to a loss of cognitive functioning, mental processing, dizziness, word finding problems, emotional difficulties, mental fatigue, mood, memory problems, sense of smell issues, light sensitivity, headaches, as well as employment problems and loss of income. Traumatic brain injury (TBI) is a significant cause of disability in the United States, roughly 13.5 million individuals.  Many brain injury victims live with significant disabilities.  The economic impact of brain injuries as been estimated to be in the billions of dollars, with millions of emergency room visits, and thousands of hospitalizations and deaths from brain injuries.   Falls, being struck by an object, and motor vehicle crashes are leading causes of brain injuries.    


Moderate to severe traumatic brain injuries can result in neurologic and functional impairments.  A typically used brain injury severity scale is the  Glasgow Coma Scale (GCS): a GCS score of 13 to 15 is considered mild injury; 9 to 12 is considered moderate injury; and 8 or less is considered severe.  Management of brain injuries may depend on whether the traumatic brain injury is due to severe trauma versus secondary which may continue for some time.  One approach to concussions is to now refer patients to specialty concussion clinics and therapists to work to rehabilitate impairments, which we often see in our brain injury legal cases.  


Mahoney Law is an Idaho is a traumatic brain injury TBI law firm.  We represent traumatic brain injury clients with TBI injury cases and insurance claims.  Our traumatic brain injury attorney will review your potential claim free of charge.   Our traumatic brain injury lawyer will review the facts of the potential case as well as your medical history to determine if you have a valid TBI injury case or TBI insurance claim. There are no fees unless we are successful as we work on a contingency fee basis.  Call Mahoney Law of Idaho now for a free, no obligation, confidential traumatic brain injury case or TBI insurance claim review. 208-345-6364.  


Top level personal injury lawyers are very selective about the cases they accept. A highly rated personal injury attorney is required to consider several important factors in deciding whether to take a personal injury lawsuit.  First, the best personal injury law firms must assess whether they can prove that the opposing side did something wrong that rises to a negligence, or even recklessness, sometimes referred to as “liability.”  Not all harmful conduct is negligence, it depends on whether the opposing side behaved unreasonably under the circumstances, without due care, where it could be reasonably foreseen that another could be injured.  Often the personal injury lawyer will enlist the help of qualified experts in the proper field (such as accident reconstruction experts) to help determine whether liability can be proven.  Second, the personal injury attorney will assess the level of injury and harm that you suffered in the accident.  Personal injury lawsuits are very expensive to bring to trial, so usually only cases involving meaningful injuries are pursued to ensure that the costs of litigation do not exceed the damages that could reasonably be awarded to you.  A third item that a personal injury law firm will evaluate is the level of insurance or financial resources the opposing side has available from which to pay money damages, whether in the form of liability insurance or otherwise.  Finally, a fourth consideration is timing relative to the statute of limitations (time deadlines) for taking legal action on personal injury cases. There are other factors that may be considered, and each case certainly is unique, but the topics discussed above are a general starting list of the initial things a personal injury attorney will evaluate in deciding whether to take your personal injury case. 

For a free, no obligation consultation with Mahoney Law