Limited Tort Option

January 23rd, 2015 by Rieders Travis in Car Accidents

Premium Reduction. Insured will receive an additional premium reduction of at least 12% for making this election.

  1. Tort Election. If this option is elected by an “insured,” the election applies to and is binding on other individuals who are not named insureds under a separate policy.  Thus, the option election would apply to any individuals residing in the household of the named insured who are spouses or other relatives of the named insured, a minor in the custody of the named insured, or a relative of the named insured.  The elected option applies to the insured, or others bound by the insured’s election, with respect to any private passenger motor vehicle accidents.  What this means is that if you have elected a limited tort option and you are a passenger in someone else’s private passenger automobile, and you are injured as a result of the negligence of that driver or some other driver, you are not allowed to sue for non-economic losses except if you suffer a serious personal injury.

2.1      Children of Owners.  Children of owner of a registered, uninsured vehicle are not bound by limited tort election that owner was deemed to have chosen under Section 1705 (a)(5).  Holland v. Marcy, 883 A.2d 449 (Pa. 2005); however, children of owner of a registered vehicle who has elected limited tort are bound by that election. Hobbs v. Ryce, 769 A.2d 469 (Pa. Super. 2001).  This distinction makes little sense, but the courts will not change the wording of the statute.  See concurring opinion by Justice Newman in Holland.

2.2      Resident Girlfriend’s Limited Tort Election.  Owner of vehicle may be bound by election made by others with regards to the vehicle. Schwartzberg v. Greco, 793 A.2d 945 (Pa. Super 2002).  Owner is bound by resident girlfriend’s “limited tort” election on his own vehicle, where he gave her consent to purchase coverage. Pedestrian, who had suspended driving privileges, was struck by a motor vehicle while walking on roadway.  Pedestrian’s own vehicle was insured by his resident girlfriend, who had elected “limited tort” coverage and listed pedestrian/owner as an “excluded driver”.

2.3      Fiance’s Selection of Limited Tort.  McWeeney v. Estate of Strickler, 61 A.3d 1023 (Pa. Super. 2013).  Auto accident occurs in which Sally McWeeney was injured and institutes a lawsuit.  The question is whether she is bound by her fiancé’s selection of limited tort.  Ms. McWeeney was listed as another driver on the policy but not a named insured.  The court found that under Section 1705(f) involving application of tort options, the limited tort selection by the named insured did not bind listed principal drivers.  Only the one who is identified by name as insured on the face of the policy is a “named insured” for purposes of tort election.  Another question was whether a policy may properly define an “insured” more broadly than the MVFRL for purposes of binding permissive drivers to the owner’s election of limited tort.  Where an insurance policy would bar more drivers from claiming non-economic damages against third party tortfeasors than was contemplated in Section 1705, it runs afoul of the statute and is not enforceable.  Therefore to the extent that Mr. Brandt’s policy would preclude permissive drivers from filing full tort claims against third party tortfeasors when they otherwise have the expressed right to do so under the MVFRL, the policy is unenforceable.

  1. Right to Sue. If an eligible claimant elects limited tort remedy, that person cannot sue for non-economic losses unless the “serious injury” exception or another exception under the Act applies.

 

  1. Serious Injury. “Serious injury” is defined as a personal injury resulting in death, permanent serious disfigurement, or serious impairment of body function.

 

  1. Impairment of Body Function. What constitutes serious impairment of body function depends on the specific plaintiff.  Long v. Mejia, 896 A.2d 596 (Pa. Super 2006).  The language in the Pennsylvania Act is identical to the language in the Michigan No-Fault Act, and therefore our courts will look to Michigan decisions for purposes of defining “serious impairment of body function.”  Under Michigan law, courts have held:

5.1      The impairment need not be permanent to be deemed serious.

5.2      You must look to the particular body function which was impaired.

5.3      You must look to the extent of the impairment.

5.4      You must look to the length of time the impairment lasted.

5.5      What treatment was required to correct the impairment.

5.6      Any other relevant factors.

Under Michigan law, a person who suffers an injury of short duration and who is able to return to full or nearly full activities after a limited period of time cannot recover for non-economic damages.

See Washington v. Baxter, 719 A.2d 733 (1998), adopting Michigan definition from DiFranco v. Pickard, 398 N.W. 2d 896 (1986) and see Long v. Mejia, 896 A.2d 596 (Pa. Super 2006); Graham v. Campo, 990 A.2d 9, 16 (Pa. Super. 2010), appeal denied, 609 Pa. 703, 16 A.2d 504 (2011).

  1. Pedestrians. A limited tort election does not apply to pedestrians.  L.S. v. Eschbach, 874 A.2d 1150 (Pa. 2005).  Minor child, whose mother had elected limited tort option, was walking across the street when struck by vehicle.  Section 1705 does not apply to pedestrians and minor child’s right of recovery is not restricted by limited tort election.

 

  1. Jury Information. The jury should not be informed of the plaintiff’s election of limited tort and that the election resulted in lower premiums.  Price v. Guy, 735 A.2d 668 (1999)

 

  1. Summary Judgment. The threshold determination as to whether a “serious injury” has been suffered is not to be made routinely by a trial court judge but rather left to the jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained.  The factors to be considered in determining if a claimed injury is “serious” are:

 

(1)  the extent of the impairment;

(2)  the length of time the impairment lasted;

(3)  the treatment required to correct the impairment; and

(4)  any other relevant factors.

 

The focus is not on the injuries themselves, but on how the injuries affected a particular body function.  The impairment need not be permanent.  Summary judgment was improperly granted to insurance company where claimant had shown that she was diagnosed with no less than eight (8) ailments, which her treating physician stated to a reasonable degree of medical certainty were a direct result of the accident.  The claimant described at length how her daily life had changed because of the pain she has and continues to endure.  Medical treatment was not continued because the claimant did not have health care insurance.  Cadena v. Latch, 78 A.3d 636 (Pa. Super. 2013).

Definitive objective medical opinion identifying the cause of injured party’s pain is not necessary to overcome motion for summary judgment.  Wilson v. Fisher, 21 Lyc. 1 (1999).  Plaintiff, seeking noneconomic damages for “serious injury” introduced evidence that he continued to seek treatment and medication for back injury since accident; however, there was evidence of no “disc herniation or significant disc disease.”