Can You Sue With Limited Tort in PA?
Limited tort restricts your right to recover non-economic damages, such as pain and suffering, unless your injury qualifies as “serious” under Pennsylvania law or one of the exceptions. Economic damages (medical bills, lost wages, and out-of-pocket costs) are recoverable either way.
What is Limited Tort in Pennsylvania?
In order to make more profits and pay out fewer claims, the automobile insurance industry pushed for and created “limited tort”, which limits or prevents recovery of certain damages in personal injury claims. Limited tort means “limited recovery of damages”. Limited tort restricts your rights to recover for certain injuries or damages, specifically non-economic damages, such as pain and suffering. Allowing consumers to select “limited tort” was passed into law to amend the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) in 1990. A change that prioritizes insurance company profits over victim perspective and financial recovery needs.
Exceptions to Limited Tort in Pennsylvania
Here’s how to understand the exceptions to limited tort in Pennsylvania. Under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), there are exceptions in which an injured party who chose limited tort or is insured by a limited tort policy can still recover a pain and suffering settlement as if he or she had a full tort policy. These exceptions come from 75 Pa. Cons. Stat. § 1705 and from Pennsylvania case law interpreting it, and include the following:
- Drunk Driver Caused the Accident – Limited tort does not apply if the driver at fault for the accident is convicted of driving under the influence (DUI) or accepts Accelerated Rehabilitative Disposition (the ARD program). However, there are two important legal caveats to keep in mind:
- Deceased Driver: If the at-fault drunk driver dies as a result of the crash, they cannot be prosecuted. Because they cannot be convicted or enter ARD, the DUI exception is lost, and you must still prove a “serious injury” to overcome limited tort. The statute requires that the at-fault driver actually “is convicted or accepts” ARD, so a pending charge is not enough either. That creates a timing problem in some cases, because a DUI conviction can come after the two-year statute of limitations on the civil claim has already run.
- Uninsured/Underinsured (UM/UIM) Limitation: Under Rump v. Aetna Casualty & Surety Co., 710 A.2d 1093 (Pa. 1998), the Pennsylvania Supreme Court held that the limitation in 75 Pa. Cons. Stat. § 1731(d)(2) applies to all four exceptions in § 1705(d)(1), including the DUI exception. That means the exceptions let you recover pain and suffering from the at-fault driver, but not from your own UM or UIM coverage. If the drunk driver is uninsured or underinsured and you must turn to your own policy, you must still prove a “serious injury”.
- An Uninsured Driver Caused the Accident – Under Pennsylvania law, if the driver who caused the accident was uninsured, the injured party is not bound by limited tort. The law reads that limited tort does not apply “whenever the person at fault has not maintained financial responsibility as required” by Pennsylvania law. 75 Pa. Cons. Stat. § 1705(d)(1)(iv). However, there is a critical distinction regarding Uninsured Motorist (UM) or Underinsured Motorist (UIM) claims. Under the Pennsylvania Supreme Court ruling in Rump v. Aetna Casualty & Surety Co., the statutory “uninsured driver” exception only allows you to seek full tort damages directly from the at-fault driver. It does not apply to first-party claims against your own insurance carrier. If you file a UM or UIM claim with your own insurer to recover pain and suffering, you remain bound by your limited tort selection and must still prove your injuries meet the “serious injury” threshold.
- Car Registered in Another State – If the person who caused the accident was driving a vehicle registered in a state outside of Pennsylvania, limited tort does not apply to your third-party claim. As many car accidents in the Philadelphia area are caused by drivers with cars registered in New Jersey, New York, Maryland, or Delaware, this is a highly significant exception. Remember, it is where the car is registered that controls, not where the driver resides. 75 Pa. Cons. Stat. § 1705(d)(1)(ii). Note that under Rump v. Aetna, this out-of-state exception does not apply if you must file an Underinsured Motorist (UIM) claim with your own insurance company; to recover pain and suffering from your own carrier, a “serious injury” is still required.
Occupant of a Commercial Vehicle or a Motorcycle – Under Pennsylvania law, you retain full tort rights if you are injured while occupying a vehicle other than a “private passenger motor vehicle.” Since a private passenger vehicle is legally defined as having four wheels, motorcycles are excluded from this definition. This means both operators (drivers) and passengers of motorcycles are exempt from limited tort and can recover full damages. This exception also applies if you are an occupant of a taxi, bus, rental truck, tractor–trailer, or any other commercial vehicle. Because these are not private passenger vehicles, you are entitled to full tort coverage even if you chose limited tort on your own personal auto policy. 75 Pa. Cons. Stat. § 1705(d)(3).- You Do Not Own a Car and Have No Household Auto Policy – If you do not own a currently registered vehicle, and you do not live with a relative who has an auto insurance policy, you are not bound by limited tort. Under 75 Pa. Cons. Stat. § 1705(b)(3), individuals completely outside the auto insurance system are automatically granted full tort rights. This means that if you are an injured passenger in someone else’s vehicle and you are outside the auto insurance system entirely, you can seek full compensation for both economic and non-economic loss without having to prove a “serious injury”.
- Pedestrian Struck by a Vehicle – A pedestrian injured by a motor vehicle is not bound by limited tort, regardless of what they elected on their own auto policy. If you are struck while crossing the street, you can pursue pain and suffering from the at-fault driver even if you chose limited tort. The same argument is generally made on behalf of bicyclists, though no Pennsylvania appellate court has squarely extended L.S. v. Eschbach, 874 A.2d 1150 (Pa. 2005) to bicycle riders. And as with the other exceptions, this addresses your claim against the at-fault driver; whether it reaches a first-party UM or UIM claim against your own carrier is unsettled and depends on your policy language.
- A Vehicle Defect Caused the Accident – If the accident was caused by a defect in the vehicle, you retain full tort rights against the business that designed, manufactured, repaired, serviced, or otherwise maintained the vehicle, where the defect was caused or left uncorrected by something that business did or failed to do in the course of its work. This exception is narrower than the others. It applies only to your claim against that business, not to your claim against the other driver, who you would still have to pursue under limited tort unless a separate exception applies. It also does not apply where the defective vehicle was one operated by that same business. 75 Pa. Cons. Stat. § 1705(d)(2).
- The At-Fault Driver Intended to Cause Injury – If the person who caused the accident intended to injure themself or someone else, limited tort does not apply. The statute defines this narrowly. A driver is not treated as having intended injury merely because his act or failure to act was intentional, or because he acted knowing it created a grave risk of causing injury. So reckless driving, regardless of how egregious, does not by itself satisfy this exception. It also does not apply where the act causing the injury was done for the purpose of averting bodily harm to them or someone else. 75 Pa. Cons. Stat. § 1705(d)(1)(iii).
- The Injury Involved a “Serious Injury” Under the Law – The law states that, “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 [pain and suffering].” So what does serious injury mean? The Pennsylvania Legislature has defined serious injury as, “A personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S.A. § 1702. However, the Pennsylvania courts have held that all injuries are different and that even a soft tissue injury can constitute a “serious injury” where it is clearly documented and substantially impairs body function.
Occupant of a Commercial Vehicle or a Motorcycle – Under Pennsylvania law, you retain In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Pennsylvania Supreme Court held that whether an injury is serious is ordinarily a question for the jury, and that a court should not dismiss the claim on summary judgment where reasonable minds could differ. In determining whether a claimed impairment is “serious,” the court considers: (1) the extent of the impairment; (2) the particular body function impaired; (3) the length of time the impairment lasted; (4) the type of treatment required to correct the impairment; and (5) any other relevant factors. The focus is not on the type of injury, but on how the injury affected a particular body function. Normally, medical testimony will be needed to prove a serious injury.
Some examples of cases where the Courts held the injury could be “serious” and it was up to the jury to determine the issue of whether the injury was serious include:
- Plaintiff continued to experience pain in neck, back, legs, along with headaches, could not sit or stand for long periods, and missed her children’s activities. Cadena v. Latch, 78 A.3d 636 (Pa. Super. 2013)
- Plaintiff sustained a herniated disc and underwent a course of physical therapy and was impaired in his ability to sleep, run and hike long distances, play with his child, ride his mountain bike and motorcycle although he only missed 3 days of work. Kelly v. Ziolko, 734 A.2d 893 (Pa. Super. Ct. 1999)
- Plaintiff suffered a bulging disc, pain radiating into her leg, had difficulty lifting heavy objects and playing with her daughter, and continued to experience pain for well over a year. Furman v. Shapiro, 721 A.2d 1125 (Pa. Super. 1998).
- Plaintiff suffered chronic pain syndrome; could not do many physical activities including housework and recreation without pain; and had difficulty sleeping. Robinson v. Upole, 750 A.2d 339 (Pa. Super. 2000).
An experienced car accident law firm near you, like The Pearce Law Firm Personal Injury & Accident Lawyers, P.C. – an established, local, and dedicated firm – knows how to prove your injury was “serious” to meet the threshold to overcome limited tort. We will make sure you undergo diagnostic testing like an MRI or x-ray to see if there is a fracture or herniated disc and will aggressively represent your interests throughout the claims process.
Also, if you sustained scarring, we will document this with your medical doctor. Also, we will have you keep a journal of how your injuries have impacted your life such as not allowing you to play with your child or participate in social activities. If you are experiencing pain and symptoms, it is essential to continue treatment to document this to the insurance company. We will also show the insurance company how the injury has affected your job, either showing you have missed substantial time from work or that you have restrictions and cannot perform your job to the fullest, the way you used to. We will negotiate a comprehensive settlement that covers both economic damages like medical bills and lost wages, as well as non-economic damages.
How Do You Know if You Have Selected Limited Tort?
Limited Tort is an option on your insurance policy that you must select by signing a waiver. Many drivers find this tort option confusing and don’t realize they may be waiving their right to pursue fair compensation for serious or permanent injuries. If you do not sign this waiver and make the choice of limited tort, you remain on full tort, which allows you to file a lawsuit and pursue maximum compensation for all damages, including bodily injury and pain and suffering. The policy declaration page issued for the automobile policy will then indicate that the limited tort coverage has been issued with a limited tort election. There should then be a slight premium discount.
The Auto Insurance Company Must Prove You Elected Limited Tort
Section 1705 of the Pennsylvania Motor Vehicle Financial Responsibility Law controls how a tort election must be made. Before a new policy can be issued, the insurer must give the applicant a standardized notice describing both options and an opportunity to elect one (the policy cannot be issued until that happens). 75 Pa. Cons. Stat. § 1705(a)(4). For policies already in force when the law took effect in 1990, the statute set up a two-notice process: if the named insured did not indicate a choice within 20 days of the first notice, the insurer had to send a second and final notice, and if the named insured did not respond to either notice by 10 days before the renewal date, he and everyone he could bind were conclusively presumed to have chosen full tort. 75 Pa. Cons. Stat. § 1705(a)(1), (a)(3).
Two wrinkles matter. The statute says that any person “signing, or otherwise bound by, a document containing such terms” is bound by the election, and that where a policy has two or more named insureds, any one of them may make the election for all of them. 75 Pa. Cons. Stat. § 1705(a)(2). So a signature from your spouse can bind you, and a signed application containing the required notice language can be enough even without a separate waiver form. That is exactly why the specific documents the carrier produces (and what language they actually contain) matter so much.
In dealing with car crashes and motor vehicle accidents in the Philadelphia area and South Jersey, our firm always sends a request to the insurance company requiring them to produce a copy of the signed waiver for limited tort. Sometimes they are not able to produce the waiver, and then it can be argued that you are not bound by “limited tort,” but you have full tort. Our aggressive legal strategy approach involves thorough investigation and comprehensive document review to maximize your recovery. We represent clients in complex litigation and negotiate settlements that reflect the true value of your case.
Are Other Family Members Bound by Limited Tort?
Under Pennsylvania law, “resident relatives” of the insured named on the policy are bound by the limited tort option selection as long as 4 conditions are met:
- They do not own a currently registered motor vehicle in their name (under § 1705(a)(5), if they own a registered vehicle but fail to insure it, they are automatically “deemed” to have limited tort; if they own a registered, insured vehicle, they are bound by the election on their own policy rather than yours);
- They are not named as an insured on their own auto insurance policy;
- They reside with you (the named insured); and
- They are a spouse or other relative of yours (the named insured), or a minor in the custody of you or of one of your relatives. 75 Pa. Cons. Stat. § 1705(f).
Some examples of people who may be bound by your choice of limited tort, include: children living with you; a spouse living with you; a brother or sister living with you; parents or stepparents living with you; grandparents residing with you; aunts or uncles and more distant relatives in some cases residing in your home. The second category is easy to miss: a foster child or other minor in your custody can be bound by your tort election even with no blood, marriage, or adoption relationship. Understanding how your tort option affects your entire household is critical to protecting your family’s financial recovery needs and quality of life restoration after a catastrophic or serious injury.
One rule can work in your favor. If more than one private passenger motor vehicle policy applies to you and those policies carry conflicting tort options, you are bound by the tort option on the policy covering the vehicle you were occupying at the time of the accident, but only if you are an insured on that policy. In any other conflict, you are bound by full tort. 75 Pa. Cons. Stat. § 1705(b)(2).
Questions About Pennsylvania Limited Tort
At The Pearce Law Firm, we are experienced lawyers handling car accidents in the Philadelphia area and suburbs, including New Jersey. Our firm offers a free consultation and free case review with no upfront cost. We work on a contingency fee basis, so you only pay if we successfully recover compensation for you. We will personally review your auto insurance policy with you and provide a thorough case evaluation to advise you on whether you qualify for exceptions to limited tort. We know how to make the insurance company produce the actual election documents and prove you are bound by them, and we’re prepared to litigate and appeal claim denials when insurance companies use unfair tactics.
Also, there are many exceptions to get around the limited tort option and still allow you to recover pain and suffering damages. If you’ve suffered a serious injury threshold violation, such as permanent serious disfigurement, catastrophic injuries, or other eligible serious injuries, you can still pursue full compensation even with limited tort. Our attorneys help clients understand the immediate and long-term injury impact on their lives, document all losses, and fight insurance companies to secure justice and accountability. If you or a loved one has been injured in a car accident or needs guidance from a limited tort lawyer in Philadelphia, call (215) 557-8686 for personalized attention and same-day response. We offer flexible appointment scheduling, home and hospital visits, and access to our medical provider network and expert witnesses to build the strongest possible case.
Note: This article is not legal advice.
