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Limited Tort vs. Full Tort – Exceptions to Limited Tort in PA
In Pennsylvania, insurance companies offer full tort coverage, which gives covered individuals the right to sue in court for full damages, and limited tort coverage which restricts the ability to sue for pain and suffering.
Even if a person injured in a car accident chose limited tort on their Pennsylvania automobile insurance policy, there are exceptions to limited tort that still allow the injured party to sue for pain and suffering.
Under the Pennsylvania Motor Vehicle Responsibility Law, there are exceptions in which an injured party who chose limited tort or is insured by a limited tort policy can still recover pain and suffering damages as if he or she had a full tort policy. These exceptions can be found under the law at 75 Pa. Cons. Stat. § 1705(d), and include the following:
Drunk Driver Caused The AccidentLimited tort does not apply if the driver at fault for the accident is convicted of driving under the influence (DUI) (DWI) or accepts Accelerated Rehabilitative Disposition or (ARD Program). The key to remember is that the person must be convicted of DUI or accepts ARD (often called “first time offender program).
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). This means that if the injured victim in a car accident has uninsured motorist coverage or UM insurance, a claim can be made against your own insurance company and you will not be bound by the limited tort option even if you chose limited tort under your own automobile policy.
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. As many car accidents in the Philadelphia area are often caused by drivers with a car registered in New Jersey, New York, Maryland or Delaware, this is a significant exception. Remember, it is not where the driver is from that controls, but rather where the car is registered.75 Pa. Cons. Stat. § 1705(d)(1)(i).
Passenger on a Commercial Vehicle or a Motorcycle. If the injured party was a passenger on a bus, taxi, Uber, Lyft, rental vehicle, motorcycle or any other type of vehicle that is not a “private passenger vehicle,” the injured party is entitled to full tort coverage even if they chose limited tort on their own policy. A private passenger vehicle does not include a vehicle that is rented to others (rental truck or rental car), used by the public (such as Uber, Lyft or a taxi cab), or is principally used for commercial purposes (tractor trailer truck, bus, public van). 75 Pa. Cons. Stat. § 1705(d)(3). A private passenger vehicle is defined as having four wheels, thus allowing motorcycle riders/passengers to obtain the exception to limited tort.
Pedestrian or bicycle rider. A pedestrian or bicyclist injured by an automobile is not bound by limited tort, despite what they chose for their own automobile policy. So, if you or a loved one was crossing the street or riding a bike and was hit by a car, it does not matter that you chose limited tort on your own automobile policy.
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 “an injury resulting in death, serious impairment of a bodily function, or permanent 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.
In determining whether a claimed impairment is “serious,” the Court must consider the following factors: (1) the extent of the impairment; (2) the particular body function impaired; (3) the length of the time that the impairment lasted; (4) the type of treatment required to correct the impairment; and (5) any other relevant factor. The Pennsylvania courts have held that the focus in not on just the type of injury, but rather on how the injuries 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 like The Pearce Law 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.
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 in pain and having symptoms, it will be important to keep treating 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.
Other exceptions to limited tort. Other less common exceptions used to overcome limited tort include accidents caused by a defect in the design, manufacturing, repair or maintenance of a vehicle. Lastly, an exception exists if the person who caused the accident intended to injure himself or another person.
The Pearce Law Firm is Here to Help. Having an experienced limited tort lawyer is important in evaluating your case. Edith Pearce worked years as a lawyer for an automobile insurance company. She knows how to overcome the limited tort defense if the facts of your case meets one of the exceptions. She will have a thorough review of your automobile accident case and your insurance paperwork. Give our firm a call. We offer free consultations – so don’t risk your case to just anyone.