Compensatory Damages in Malicious Prosecution Actions
WHAT ARE COMPENSATORY DAMAGES?
Compensatory damages are damages designed to make the plaintiff “whole.” Put another way, compensatory damages attempt to compensate the plaintiff–to “pay back” the damages the plaintiff has incurred as a result of the defendant’s wrongful conduct.
Generally speaking, only prevailing plaintiffs are able to recover damages. This means the plaintiff must prove his or her case and win the lawsuit against the defendant before the court will order the defendant to pay damages.
WHAT KIND OF COMPENSATORY DAMAGES ARE RECOVERABLE IN A MALICIOUS PROSECUTION ACTION?
In malicious prosecution cases, prevailing plaintiffs can often recover the economic damages, attorney fees, and costs (including court costs) the plaintiff incurred as a result of the malicious prosecution. This is true even if the costs were partially paid by the plaintiff’s insurance company (for example, while defending the plaintiff–then the defendant–in the underlying action which gave rise to the malicious prosecution claim).
If the plaintiff lost earnings or profits (for example, due to lost work time, loss of employment, or business closures) as a result of the malicious prosecution, those sums may also be recoverable as compensatory damages.
Compensatory damages may also include non-economic damages, such as emotional distress, compensation for damage to the plaintiff’s reputation or credit, and other similar damages. However, specific rules regarding recovery of non-economic damages apply in malicious prosecution actions (as they do in other types of cases) and non-economic damages may be hard to prove and receive than economic damages. That said, non-economic damages are available, and often recovered, in malicious prosecution actions. An individual assessment of each plaintiff’s claims, rights, and damages is required in order to evaluate the available claims and potentially recoverable damages.
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