What is the Effect on Your Limited Tort Rights if You Suffer a Serious Injury in the Motor Vehicle Accident

What is the Effect on Your Limited Tort Rights if You Suffer a Serious Injury in the Motor Vehicle Accident

Posted By Law Offices of Thomas J. Murphy || 2-Jul-2012

In Pennsylvania, every owner of a registered motor vehicle must obtain automobile insurance on their vehicle pursuant to 75 Pa. C.S. § 1701 et. seq. In 1990 the law was changed to enable vehicle owners to have a choice between the standard automobile insurance policy and a cheaper, less expensive automobile insurance policy. These two types of policies are known as a "full tort" policy and a "limited tort" policy. A "full tort" policy is a traditional policy wherein the insureds on the policy have an unrestricted right to bring a claim against a negligent driver, regardless of the type of injuries sustained. A "limited tort" policy is where the vehicle owner obtains a discount from the insurance carrier and in return for that discount the vehicle owner gives up his or her right to bring a claim for bodily injuries, regardless of how negligent the other driver may have been. The problem is that the vehicle owner's tort selection is binding on all of the "insureds" under the policy who do not own their own vehicle and are consequently not a named insured on any other policy. Pennsylvania auto law defines an "insured" as anyone residing with the vehicle owner (named insured) who is a spouse or relative of the vehicle owner. Thus, any child, grandchild, sibling, parent, grandparent or spouse (even if married after the auto insurance policy went into effect) may be bound by the household vehicle owner's limited tort selection, even though those "insureds" received no money (discount) from the automobile insurance company in exchange for the loss of their constitutional right to bring a bodily injury claim against a negligent driver that caused his or her injuries.

Fortunately there are several exceptions to the rule that the limited tort policy prevents you from bringing a personal injury claim. If the facts involved in your accident or injuries meet one of the exceptions, then you may be granted full tort rights under the law. One of the statutory exceptions to the limited tort policy is if the injured person sustained a "serious injury." See 75 Pa. C.S. § 1705(d). While it may appear straight forward, determining what injuries may be considered a "serious injury" and what injuries are not serious is not as simple as it may appear. Under Pennsylvania's motor vehicle law a "serious injury" is defined as "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." See 75 Pa. C.S. § 1702. Thus, under the law's definition of a serious injury, a victim's injury must fall into one of three categories. The first one, "death" is simple and needs no further explanation. The third one "permanent serious disfigurement" is open to interpretation and their is no golden rule. However, as a general rule, the more severe the disfigurement and the more available the location is to observation by the public, the greater the chance that the court will rule that the disfigurement is a "serious injury." For example a disfiguring scar on one's face may be considered a "serious injury," while the same disfiguring scar located on a part of the body that the public never sees and the injured person never sees, such as a buttock, may be held to not be a "serious injury." Here the court does take into consideration the emotional impact of the disfigurement on the injured person.

However, by far the most litigated category defining a "serious injury" is the second one, "serious impairment of body function." While it is true that some injuries are so severe that no one questions whether they constitute a "serious injury," many types of injuries fall into the gray area and are left for the court to decide whether they constitute a "serious impairment of body function" and whether they are to be held to be a "serious injury" or not and whether the injured person's injuries meet the exception to the limited tort restriction on bringing a bodily injury claim. When trying to decide whether an injury equates to a "serious impairment of body function," the court looks at several factors. Since all injured plaintiff's believe their particular injuries are "serious," the court looks beyond what the injured person has to say and looks at the injury and the medical treatment that was required, such as whether surgery was involved and whether the injury will have a permanent impact on the person or only a temporary impact on the person. The court also looks at whether the injured person lost time from work, as the court realizes that most people can not forgo a paycheck very long unless it is absolutely necessary. Finally, the court looks at the impact of the injury on the particular person and it is quite possible for the court to hold that the same injury constitutes a "serious impairment of body function" for one person and not another. For example, a fracture to the non-dominant hand of a lawyer may not be held to be a "serious impairment of body function" because the lawyer may not miss a day from work and can still do the majority of things with his dominant hand, whereas the same injury to a musician or heavy laborer may be held to be a "serious impairment of body function" as the injury may require them to lose a lot of time from work or may prevent them from ever returning to the same occupation.

Because many types of injuries fall into this gray area, you will not always know in the beginning whether an injury suffered in a motor vehicle accident will eventually constitute a "serious injury' or not. Here it is good to remember that in Pennsylvania, there is a two year statute of limitations for negligence claims. Thus, an injured person and their lawyer will have up to two years to decide whether a victim's injuries are serious enough to overcome the limited tort restriction. Therefore, individuals injured in motor vehicle accidents who were initially told that their injuries would be barred by the limited tort restriction should review their injuries with an experienced personal injury attorney toward the completion of their medical treatment because a second look may result in a different opinion, especially if the diagnosis changed or the medical recovery was not as successful as anticipated.

Of course the best way to avoid this issue and to make sure that you always have full tort rights arising out of any and all motor vehicle accidents is to make sure that you or the vehicle owner in your household that is a relative of yours obtains a "full tort" automobile insurance policy. When you realize that the limited tort policy the vehicle owner purchases is binding on every household relative that does not have their own automobile insurance policy, you will realize that the amount of the discount divided by the number of household relatives who lose their rights is not worth the amount of the discount per person. Also, the limited tort policy has no affect on whether another person can bring a negligence claim against you. Your limited tort policy will pay another person injured by your driver's negligence, but may very well prevent you and your household relatives from bringing an injury claim against a negligent driver that injured you and/or your household relatives.

If you are injured in Pennsylvania by a motor vehicle, you should always consult with an experienced personal injury lawyer to determine whether you have the right to pursue a claim against the negligent driver's insurance carrier for financial compensation for personal injuries, excess medical expenses and lost wages.