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But you struggle at your job, hobbling around. Fortunately, your employer accommodates you, letting you "work from home," so your income remains the same. You have no "lost wages," but getting around on a broken leg is a hassle caused through no fault of your own. Here, your largest item of damages would be "pain and suffering," which is significant from a broken leg, and possibly worth 10K or more.
But if you're "limited tort," you'll never get the 10K for your pain, unless an exception to limited tort exists.
Instead, your claim is limited to economic loss or "hard cost specials" such as:
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- physical damage to your vehicle or laptop computer shifted around during the crash, but that's it, unless your Pittsburgh lawyer can find a way around "limited tort," and
- medical expenses, referenced above, your own "no-fault" pays those costs to the limits of your own no-fault personal injury protection (PIP), and,
- Lost Wages. Only, as indicated, your employer accommodated your injury and physical limitations. You still worked, albeit with pain, but your income remains the same. There, you would receive nothing for the pain, if bound by limited tort, unless your Pittsburgh lawyer could find an exception to limited tort, discussed below.
Frequently Asked Questions about
Limited Tort in PA
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 Pittsburgh 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). Also important is 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. The statute originally allowed "serious injury" to be defined in your insurance policy. However, 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.” Click here to learn more about the "serious injury" or "serious impairment" exception.
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. There, 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.
What Other Exceptions Exist?
What happens if the injury is not “serious” or involves permanent disfigurement? Then, to escape limited tort, your lawyer needs to find an exception. Each Pittsburgh lawyer on our staff aggressively looks for exceptions to limited tort.
Private Passenger Vehicle Concept
This is a major exception to limited tort and it's described right here at length. It means, limited tort only applies to those riding inside a private passenger vehicle, which makes many types of injuries fall outside of limited tort. So the concept of limited tort will not apply to those injured when:
- Riding a motorcycle
- A pedestrian, struck by a vehicle, for this, see LS v. Eschbach, 874 A. 2d 1150 - Pa: Supreme Court 2005. Limited tort only applies to those operating a "motor vehicle" when injured. Therefore, it does not restrict the claim for injuries by any pedestrian.
- A passenger in rideshare, such as Uber or Lyft,
- Operating a bicycle, because here, again, limited tort only restricts claims of those injured while operating or occupying a "private passenger vehicle," meaning, a motor vehicle. A pedal cycle or bike is not a motor vehicle,
- A passenger in commercial vehicle such as a bus, or
- A compromise verdict, where possibly no exception applies, but the jury is persuaded to award more money -- possibly labeling it an award for "future medical bills," for example, without calling it "pain and suffering."
More on the Pedestrian Instance
The pedestrian exception was the subject of. L.S., a Minor, by A.S., L.S., a Minor, by A.S., v. David Eschbach, 874 A.2d 1150 (2005). There, the Supreme Court of Pennsylvania ruled: "the Superior Court erred in determining that ... limited tort ... applies .. to pedestrians."
The Child Exception
Children of parents who opted for limited tort are not limited by a parent's election in Pennsylvania. See Holland v. Marcy, 883 A.2d 449 (Pa. 2005). However, if the injured child is old enough to drive and has elected limited tort, the child will be so bound. Each Pittsburgh lawyer on our team will look for exceptions that apply to children.
Still Other Exceptions
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, click here for more,
- 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.
If I Overcome the "limited tort" barrier, does that mean I'll recover money?
Unfortunately, No.
Overcoming the limited tort barrier is important, but there may be other defenses to your claim for injuries from a vehicle accident. For example, your own comparative negligence can reduce the value. Recently, in Dailey v. Smith Dailey v. Smith, 2024 PA Super 235 - Pa: Superior Court 2024, the Superior Court opined that a judge must instruct a jury about the "comparative negligence" rule, which can reduce or eliminate any recovery by the Plaintiff, if evidence exists showing that that plaintiff's own conduct causes her injuries, in whole or in part.
Plus, if there were multiple driver's at fault for your injuries, each driver's liability will be limited to his "fair share": i.e., the percentage of harm he cause, specifically. So, in a multi-vehicle pile-up, a party who is only one percent at fault for the accident, can only be responsible for 1% of your harm, subject to a few exceptions.
And, even if you recover money, you may still need to pay some or all of it back to your health insurance carrier, to pay an medical or other liens from your recovery. However, our lawyers work to negotiate those down, when possible, to maximize your recovery. Call us for more information.
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. One example is 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. This lures drivers (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.
Despite Limited Tort, Do Injured PA Motorists Get Any Breaks?
On the positive side, at about the same time as “full fort” legislation, Pennsylvania also instituted mandatory personal injury protection (PIP) insurance coverage. This was 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 your medical bills from a vehicle accident get paid, regardless of fault, up to the limits of your PIP coverage. Everyone has at least $5,000, but it can be more, depending how much coverage you had in effect at the time of the accident at issue.
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 the plaintiff's injury appears 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. Here, we must determine when the two-year period began to run.
Pursuant to § 1705 of the MVFRL . . 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." Plus, 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.
.[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.
Can the Defendant's lawyer tell the Jury my tort election?
No.
The word "limited tort" cannot be stated to a jury, for the reasons stated here.
ADDITIONAL FREQUENTLY ASKED QUESTIONS
Click here to read answers to more frequently answered questions about limited tort. For example, do the limited tort exceptions (described above) apply in uninsured motorist claims (UM) or underinsured motorist claims (UIM)?
KEY CASES INVOLVING LIMITED TORT CASES IN PENNSYLVANIA
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- Washington v. Baxter, 719 A. 2d 733 - Pa: Supreme Court 1998: Plaintiff must plead and prove "impact" on his or her life from the injury. "Although Appellant has introduced evidence that there is some type of arthritis or coalition in his foot, he has failed to show that this injury has had such an impact on him so that it constitutes a serious injury. Therefore, we reject Appellant's argument."
- This is a non-precedential opinion about the statute of limitations as it relates to limited tort. Moyer v. Conroy, Pa: Superior Court 2020
- This is another non-precedential opinion. Here, there was reference at trial to the Plaintiff being "limited tort," which is a reference to insurance, which is not permissible at trial. However, the Plaintiff failed to make a timely objection and/or show how actual prejudice resulted, therefore the trial court's decision to admit the evidence was not reversible or grounds for a new trial. Ciarlante v. Clark, (Pa.Sup.2021).
- Summary judgment in favor of the defense was affirmed, where the Plaintiff had failed to respond to requests for admissions and had therefore admitted she (a) was bound by limited tort and (b) only suffered minor injuries. Steward v. Lennox, Pa: Superior Court 2021 (non-precedential opinion).
- Bing v. CAMBRIA COUNTY TRANSIT AUTHORITY T/CAMTRAN, Pa: Superior Court 2021: "[t]he only form of medical opinion produced by [Appellant] is that of Dr. Levy, which clearly indicates that [Appellant] did not suffer any form of `serious' injury."
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Feel free to call or email our experienced limited tort Pennsylvania attorneys for a free consultation to learn about insurance generally. Learn how full tort and limited tort concepts apply to your case. We focus on finding exceptions to limited tort.
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