This is a question that I hear from clients all too often. Although there is no easy answer, I can say that the precise implications of selecting “Limited Tort” in Pennsylvania are often misunderstood by both clients and attorneys alike. I also believe that far too many “Limited Tort” cases are rejected by attorneys offhand due to the difficulties associated with recovering in these types of cases.
In Pennsylvania, individuals who have elected the “Limited Tort” alternative on their auto insurance policy are generally limited to the recovery of economic damages when they are injured in a car accident. This means that these individuals will not be able to recover monetary damages to compensate for the pain and suffering they have experienced unless one of several statutory exceptions applies or it is determined that they have suffered a “serious injury” as defined by Pennsylvania law. Previously, I have written about the various exceptions that allow a “Limited Tort” plaintiff to recover non-economic damages. In this article I will discuss the requirements for proving a “serious injury” under Pennsylvania law.
Pennsylvania law breaks the term “serious injury” into three distinct categories as follows: (1)death, (2) serious impairment of body function, (3) permanent serious disfigurement. 75 Pa.C.S.A. § 1702. While death and permanent disfigurement are relatively straightforward and tend to be easy to prove if they exist, the issue of what constitutes “serious impairment of body function” has been the subject of much dispute in Pennsylvania courts. When attempting to prove that an injury meets this requirement, we must be guided by the following considerations that have been explicitly adopted by Pennsylvania courts. See Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998) (citing DiFranco v. Pickard, 398 N.W.2d 896 (1986)).
- Catastrophic Injury Not Required
The “serious impairment of body function” threshold is a significant, but not extraordinarily high, obstacle to recovering non-economic damages.
- Impairment Need Not Be of an Entire Body Function
Plaintiff may recover damages for injuries which seriously impair, in whole or in part, a body function.
- “Ability to Live a Normal Life” Not a Requirement
Plaintiff’s general ability to live a normal life is no longer used to determine whether Plaintiff suffered a serious impairment.
- Not a Requirement that an Injury Impair an Important Body Function
Focus is on how injury affected a particular body function, not on injury itself.
- “An Impairment Need Not Be Permanent to Be Serious”
- Factors Jury May Consider in Determining Serious Injury
a) The extent of the impairment;
b) The particular body function impaired;
c) The length of time the impairment lasted
d) The treatment required to correct the impairment; and
e) Any other relevant factors.
In summary, while overcoming the “Limited Tort” threshold is often difficult, it is not impossible in most cases. At Stark & Stark we believe that one of the keys to overcoming this threshold is to educate our clients regarding the “serious injury” requirement at the outset of the case. Often times, we find that this will allow our clients to take note of the specific ways in which an injury has affected their life and assist in establishing a serious impairment of body function. If you are injured in a motor vehicle accident and are concerned regarding your selection of the “Limited Tort” alternative, please contact the experienced attorneys at Stark & Stark for assistance.