In Pennsylvania, there are two types of auto insurance policies: full tort and limited tort. Many of our clients have not even heard of these options and most do not know the difference between the two. It is our goal to educate our clients so that they can prevent the mistake of choosing limited tort. Of course, if you have been involved in an auto accident already, it is too late to choose full tort if you do not already have it.
When you purchase an automobile policy in Pennsylvania, you are asked to sign papers in various places. Most consumers just sign on the dotted lines and do not read the insurance policy or exactly what they are signing. Pennsylvania law requires insurance companies to give the consumer notice of the consumer’s option to choose a limited or full tort insurance policy. It is important to note that a driver is full tort status unless he elects to “sign down” to limited tort insurance, according to Pennsylvania law.
You should be aware that your choice not only affects you, but it also affects the rights of members of your household to seek financial compensation for injuries caused by other drivers.
Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering unless your injuries fall within the definition of “serious injury” as set forth in the insurance policy. (We discuss serious injuries in the next section.)
Further, an individual otherwise bound by the limited tort election shall retain full tort:
1. If the person at fault for the accident is convicted of or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in that accident.
2. If the person at fault for the accident is operating a motor vehicle registered in another state.
3. If the person at fault for the accident intends to injure himself or another person, provided that an individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury or the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person.
4. If the person at fault for the accident has not maintained financial responsibility as required by law.
5. With respect to claims against a person in the business of designing, manufacturing, repairing, servicing or otherwise maintaining motor vehicles arising out of a defect in such motor vehicle which is caused by or not corrected by an act or omission in the course of such business, other than a defect in a motor vehicle which is operated by such business.
6. If injured while an occupant of a motor vehicle other than a private passenger motor vehicle.
If you are a pedestrian, bicyclist, or motorcyclist you are immediately awarded full tort coverage.
Proving Serious Injury If You Have Limited Tort
If you do not fall into any of these exceptions, and are bound by the limited tort restriction, you must prove a “serious injury.” So how do you prove a serious injury?
The Pennsylvania Supreme Court laid out a few guidelines to help determine whether an injured person subject to the limited tort restriction can recover for pain and suffering.
The Supreme Court said two issues must be addressed:
1. Was it a serious injury?
The factors to be considered are as follows:
a. The extent of the impairment
b. The length of the impairment
c. Treatment required to correct the impairment
d. Any other relevant factors.
2. Was it a serious impairment of a body function?
The questions to be addressed in this inquiry are as follows:
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 under Pennsylvania law 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.
Often, my clients ask, “Do I have a case?” Or, “How do I overcome the limited tort restrictions?”
Unfortunately, under limited tort law, it is difficult to answer that question until we have received medical documentation, medical treatment, and restrictions on activities and movement that prove a “serious injury” and a serious impairment of a bodily function. If there is no serious injury involved, then the lawyer and client must determine how they are going to resolve the claim. Clients are often left with no chance of recovering for their pain and suffering. The unfortunate reality is that these clients will have pain for the rest their life.
The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers.
Also, if a person does not own a vehicle currently registered in Pennsylvania and is not a named insured or insured under a private passenger motor vehicle policy, they have full tort.
(Note: Even if you have full tort on your Pennsylvania auto policy, if you are in an accident in New Jersey, you are subject to New Jersey’s limited tort law under its “Deemer Statute”.)
Full tort is clearly your best option. We at Cordisco & Saile LLC always recommend full tort for our family, friends, and clients.