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Limited Tort! = Limited Recovery?

August 15, 2018

By Eric G. Marttila

Pennsylvania drivers, when presented with car insurance coverage choices, are given the “Limited Tort Option” – at a discount of some 15% to 20% on annual premiums.  While such savings may be appealing at first glance, such a decision can have far reaching adverse consequences – and our firm strongly recommends that our clients select the “Full Tort Option” whenever possible.

Not coincidentally, the word “Limited” has been defined as “restricted in size, amount, or extent” — and various synonyms have been offered, such as “restricted, finite, little, slight.”  All of these appropriately describe the impact on your potential recovery of selecting the “Limited Tort Option” . . . should you ever find yourself in the unfortunate situation of having been injured in a motor vehicle collision which is not your fault.

As a general rule, choosing Limited Tort restricts your right to make a claim for non-economic harms and losses which arise from personal injuries sustained as a result of a car collision – damages most often referred to as “pain and suffering.”  Regrettably, too many fail to appreciate what they have given up in this regard until it’s too late.  Even one lost opportunity to be fully compensated for all harms and losses will normally far outweigh any short-term savings by choosing the Limited Tort Option.  Therefore, we highly recommend Full Tort coverage to “fully” protect you and your loved ones.

Even if you have selected the Limited Tort Option, though, all is not necessarily lost.  Although many insurance companies will attempt to convince persons who have made such an election — and who then suffer physical injuries in a motor vehicle collision — that they are not entitled to any compensation for their pain and suffering, there are exceptions to the general rule precluding such recovery.  Therefore, it is very important that you seek counsel before agreeing to be bound by any “limited” recovery.

What exceptions might apply?  A few, have nothing to do with the nature and extent of physical injuries which were caused by the collision, include the following . . .

  • The driver at fault is determined to have been driving under the influence of alcohol or a controlled substance
  • The driver at fault is driving a car registered in another state
  • The driver at fault has not maintained proper car insurance
  • The injured party is the occupant of a motor vehicle other than a private motor vehicle

However, there are also exceptions which relate to how “serious” an injury was suffered.

Pennsylvania’s Motor Vehicle Financial Responsibility law provides as follows:

Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss . . .

75 Pa.C.S. § 1705 [Emphases added]

A “serious injury” is therein defined as a “personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. § 1702 [Emphases added]  Therefore, one who has selected the “Limited Tort Option” may still make a claim for pain and suffering where he or she has sustained a “serious injury.” Whether or not a personal injury has resulted in “serious impairment of body function” is most often the hotly contested question.

The first case in which the issue of “serious injury” was addressed by the Pennsylvania Supreme Court was that of Washington v. Baxter in 1998.  There, the Court stated:

The “serious impairment of body function” threshold contains two inquiries:

  1. a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
  2. b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment . . . In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.

Washington v. Baxter, 553 Pa. 434, 447–48, 719 A.2d 733, 740 (1998).

Since then, parties have focused less on the physical injuries suffered and more on the effect which those injuries have had on a particular body function or functions.  For example, where physical injuries limit walking, lifting, working, sleeping – and even cognitive function – courts have decided that it is for a finder of fact to ultimately determine whether or not a “serious injury” has been sustained.  Factors to be considered include how the injury affected the actual functioning of certain injured areas; the extent of the impairment; the duration of the impairment; treatment required to address the impairment; and any and all other factors.  Indeed, it has been determined that subjective complaints of pain alone may constitute a “serious impairment of body function”—and that an impairment need not be permanent in order to be serious.

Accordingly, even where you have selected the Limited Tort Option, please seek counsel in order to determine whether or not it may reasonably be contended that you have suffered a “serious injury.”  To be safe and secure, however, you should always select the Full Tort Option when possible so that you and your family are fully protected – and are unquestionably permitted to make claims for all harms and losses sustained as the result of a motor vehicle collision which is not your fault.

We certainly hope that you are never faced with a situation involving serious injury as a result of a motor vehicle collision or otherwise.  If this does occur, though, please be sure to contact an attorney experienced in this area to fully explore your legal options and to seek all available remedies to be made whole.

If you have any questions about Limited Tort, please contact Eric G. Marttila at 215-345-8888 or emarttila@highswartz.com. At High Swartz, we advocate for the rights of injured people. With offices in Doylestown, Bucks County and Norristown, Montgomery County, Pennsylvania, our personal injury attorneys work with people who have been injured by the negligence of others throughout Pennsylvania.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

About the Author: Eric Marttila

Eric Marttila joined High Swartz in 2016 as a result of its merger with McNamara, Bolla & Panzer, a firm he joined in 2012. He focuses his practice in Bucks County and Montgomery County on personal injury, civil litigation, workers’ compensation, and has extensive experience with work-related disability issues, including those arising under the Heart and Lung Act and Act 632/534.

More posts by Eric

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