Limited Tort Lawyers

Limited tort restricts you from obtaining an award for pain and suffering from a vehicle accident in Pennsylvania, but there are important exceptions, described below.  Our Pittsburgh lawyers come to your home or hospital room.  

 

 

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Frequently Asked Questions 

Why does limited tort matter? 

Limited tort may limit your recovery.  That is to say, if you are treated as “limited tort” (versus full tort), you may only sue for economic loss such as medical bills, property damage, various of-pocket-expenses, and lost wages (or lost earning capacity), but not pain and suffering; however, there are exceptions to limited tort, discussed below. 

Finding an exception is important because in many instances, one's claim for pain and suffering is, by far, the most valuable part of the case. Let's look at a common example.  Let's say you are driving a car and are T-boned at an intersection; you suffer a broken leg and excruciating pain from it, but you heal fully without surgery. Your medical expenses are only $1,000-$2,000. Your claim for medical expenses will be picked up by your "no fault" (or PIP) coverage, you have no lost wages, so the only claim that could put cash in your pocket is the one for pain and suffering, which could be worth 10-20K or more, based on the above facts....but only if you have full tort coverage.

Parenthetically, if you had limited tort in the above scenario, and you suffered lost wages, you might be able to sue for those, plus vehicle damage plus other out-of-pocket expenses, but you would get nothing for pain and suffering unless your lawyer can find an exception to limited tort, as discussed below.

 

What to do if you elected limited tort?

You may still recover a substantial award for pain and suffering.  There are numerous exceptions to limited tort.  Our lawyers have studied the relevant limited tort statute, namely § 1705 of the Motor Vehicle Statute of Pennsylvania; this article gives you a summary of some of your options. We have also analyzed the key appellate cases in this area interpreting state law, such as Berger v. Inaldi, 651 A.2d 553, 438 Pa.Super. 78 (1994) and Washington v. Baxter, 719 A.2d 733 (Pa. 1998) (the matter of whether an injury is sufficiently serious is for the jury, not the trial judge).

Serious Injury Exception.  A person who suffered a “serious injury” is considered full tort.  A serious injury, according to the Pennsylvania Department of Transportation, is a “personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.”

One of the key cases in this area is Washington v. Baxter, 719 A.2d 733 (Pa. 1998).  The court in Washington also makes clear that impairment need not be permanent and makes clear that the focus is on the nature of the injury and impact on the victim. Id. The court explained that the threshold for “serious impairment of bodily function” contains two inquiries:

 a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?

 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.  Id. citing DiFranco v. Pickard, 398 N.W.2d 896, 901 (Mich. 1986).

Importantly, the Washington court held that the question of whether an injury is “serious” is one for the jury, not the trial judge.  Why is this important?  Because it is very expensive for a defendant or his insurance carrier to take a case all the way to a jury trial, to learn whether he can hide behind the “limited tort” election.  The fact of a jury question (versus one that can be decided early on by a judge) can give a case settlement value.

Other Exceptions.  We aggressively look for exceptions to limited tort.  What happens if the injury is not “serious” or involves permanent disfigurement?  A person bound by the limited tort option may be able to recover damages for non-economic loss when her or she qualifies for a limited tort exception:

- Riding a motorcycle,

- A pedestrian,

- Operating a bicycle, or were

- A passenger in commercial vehicle such as a bus.

Are there additional exceptions?  Yes.  A person bound by the limited tort option is seemed to have full tort coverage where the person at fault:

- Is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance during the accident

- Was operating a vehicle registered in another state

- Failed to maintain financial responsibility (was not properly insured for the accident); or

- Intended to inflict self-harm or injure another person

Should I go by what is said by an Insurance Company?  No.  An insurance company for the driver who injured you has no duty whatsoever to explain to you the exceptions to limited tort.  Hence, even if you qualify for an exception to limited tort,  don't be surprised if the insurance company makes you a ridiculous, low-ball offer to settle the case -- or denies your claim entirely -- based on a false reliance on "limited tort."

Should I have a lawyer review the facts in my case?  The answer is, absolutely, yes.  Most law firms, like ours, offer a free consultation about your rights in any personal injury matter.  Even if you chose the limited tort option, you may be able to retain full tort rights when the accident involved a vehicle with an uncorrected design defect.  Our attorneys look for ways for you to meet these exceptions, even if it is not evident to you at first blush.

What if no exception seems to apply?  Don’t give up hope.  Even if you are deemed to have limited tort coverage, you are always free to sue for economic loss, such as lost wages, or property damage to your car, or other out of pocket expense from the accident.

Why did Pennsylvania institute the concept of limited tort?  The Commonwealth of Pennsylvania instituted the concept of “limited tort” to decrease the number of pain and suffering lawsuits in Pennsylvania courts.  Limited tort coverage is slightly less expensive than “full tort’ coverage, thereby luring people, financially, into waiving their rights to sue for pain and suffering.  Know your rights.  If you haven’t elected full fort yet, you should, immediately.

On the positive side, at about the same time as “full fort” legislation, Pennsylvania also instated mandatory personal injury protection (PIP) insurance coverage to try to lower the number of lawsuits resulting from automobile accidents. PIP insurance covers the medical bills of drivers involved in an accident, regardless of who is at fault, hence the concept of “no-fault,” so you medical bills from a vehicle accident get paid, regardless of fault, up to the limits of your PIP coverage, which is often $5,000, but it can be more, depending how much coverage you had in effect at the time of the accident at issue.

 

MORE FREQUENTLY ASKED QUESTIONS:

Let's turn to some of the more advanced issues and questions we see in the area of "limited tort" litigation.

Question #1:  How does the concept of "limited tort" relate to claims against one's own insurance carrier for UM/UIM, or uninsured or underinsured motorist coverage?  The coverage called UM or UIM comes into play when the other driver (who caused a vehicle accident in which you were injured) lacks adequate insurance coverage to pay for your injuries, hence, in the case, you may turn to your own insurance carrier for UM/UIM coverage, if you have it; it is not mandatory in PA); it must be offered to you, but it can be waived.  If you have UM/UIM coverage, your carrier stands in the shoes of the party who is responsible for your injuries, meaning, your carrier has both all duties to pay (up to coverage limits) and all defenses that the negligent driver could have asserted against you, including the defense that your claims are barred in whole or in part by the limited tort election.

If you have limited tort, relative to your UM/UIM claim referenced above, it appears that you may recover for pain and suffering (not withstanding your limited tort election) if your injuries are serious. However, the other exceptions to limited tort (as referenced above) do not apply in regard to UIM claims.  Unfortunately, in Rump v. Aetna Casualty, 710 A.2d 1093 (Pa. 1998), a non-serious injury, limited tort case claim for UM/UIM, the Supreme Court of Pennsylvania determined that the following exceptions to limited tort do not apply in regard to uninsured (UM) or underinsured (UIM) claims, where the negligent party:

1. Is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance during the accident

2. Was operating a vehicle registered in another state

3. Failed to maintain financial responsibility (was not properly insured for the accident); or

4. Intended to inflict self-harm or injure another person

The bottom line is:  if you have not already elected full tort in PA, do so ASAP.  If you have sustained any kind of motor vehicle accident, and seek compensation for injuries, call a qualified Pennsylvania attorney and speak to him in depth before drawing any conclusions about how full tort and limited tort concepts apply.

 

Question #2:  How does the statute of limitations apply to limited tort claims, which take time to develop into claims for full tort?  OK, here's the scenario.  Let's say you are in a car accident, which does not seem serious.  You bumped your head, you have mild concussion symptoms, and you seem to be getting better over the course of a year.  Let's also assume you have limited tort, and not lost wages or out of pocket expenses.  During the one year period after the accident, you seem to be progressing, but you only improve to a point.  Your doctors tell you that the mental fogginess you still feel after the accident is likely permanent, which is your first indication that your injuries from the accident, which were once thought to be non-serious, are actually serous enough to trigger full tort coverage.  When does the 2 year statute of limitations in PA  (for negligence) start running?  Did it start on the day of the accident, giving you only one year to investigate the case and file suit against all the potential Defendants?  Or, do you have 2 years from when your injuries could first be categorized as "serious" to meet the above-described exception to limited tort?

In Varner-Mort v. Kapfhammer, the Superior Court of Pennsylvania opined that the statute of limitations on a limited tort claim does not begin until it is determined that the plaintiff's injury may be serious. The Varner-Mort court quoted the PA Supreme Court in the holding of Walls v. Scheckler, which opined:

In cases involving negligence, the statute of limitations is two years. In the instant case, we must determine when the two-year period began to run. In accordance with general procedure in automobile accident cases, the trial court concluded that the two-year period began to run from the date of the accident. The trial court failed, however, to account for the unusual provisions of the [MVFRL], as it relates to the limited tort option.

Pursuant to § 1705 of the MVFRL, an insured can choose a limited tort option for automobile insurance coverage. If this option is chosen, the insured will pay a lower premium for the insurance in exchange for agreeing not to seek recompense for bodily injury that does not rise to the level of a serious injury. Since, under the provisions of this statute, a limited tort plaintiff does not have a valid cause of action unless and until an injury rises to the level of a "serious injury," and since the statute of limitations period does not ordinarily begin to run until a cause of action accrues, we conclude that the statute of limitations period cannot begin to run on a limited tort plaintiff until he knows or reasonably should know that he has sustained the requisite serious injury.

As a limited tort plaintiff, [Wells] did not have a valid cause of action, and the statute of limitations period did not begin to run, until she knew or reasonably should have known that she sustained a "serious injury." The MVFRL defines a serious injury as "[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." When the accident in this case first occurred, [Wells] sustained injuries to her face and jaw that appeared to result in only minor bruises and contusions. Consistent with recent caselaw, these injuries would not rise to the level of a serious injury. According to [Wells'] pleadings, however, her facial injury was subsequently aggravated by normal opening and closing of the jaw and she ultimately lost the use of her tempro-mandibular joint (TM joint). If these allegations are true, and [Wells] only discovered that her facial injury was a "serious injury" when she eventually lost the use of her TM joint, then the statute of limitations should not have started to run until said discovery. If this date is used, [Wells'] action may have been timely filed.

... [W]e now hold that until a plaintiff is aware or reasonably should be aware that he or she has suffered a "serious injury," such as would allow limited tort recovery, the statute of limitations does not begin to run. Applying this analysis, [Wells'] action for personal injuries may have been timely filed, depending on whether the fact-finder credits [Wells'] testimony as to when her injury was diagnosed as serious. Since a genuine issue of material fact exists regarding the timeliness of this action, summary judgment is not proper.

Feel free to call or email our experienced Pennsylvania attorneys for a free consultation to learn how full tort and limited tort concepts apply to your case.  We focus on finding exceptions to limited tort.

 

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