Both Pennsylvania and New Jersey have enacted legislation requiring that every individual that purchases an auto insurance policy is given the option to pay a higher premium in exchange for the right to recover noneconomic damages (pain and suffering) regardless of the nature and severity of their injuries.  In Pennsylvania, this option is called the “Full Tort” option and in New Jersey it is referred to as the “no limitation on lawsuit” option.  Alternatively, an individual may elect to limit their right to recover noneconomic damages in exchange for a reduced premium.  In Pennsylvania, this is called the “Limited Tort” option and in New Jersey it is referred to as the “limitation on lawsuit” option.
 
In Pennsylvania, there are several statutory exceptions that will allow an individual who has elected the “Limited Tort” option to recover as if they had elected the “Full Tort” option.  The most common exceptions apply when the person at fault for the accident is driving under the influence of drugs or alcohol, or operating a vehicle registered outside the state.  As a general rule, these statutory exceptions do not exist in New Jersey.
 
In Pennsylvania, assuming that none of the statutory exceptions apply, a “Limited Tort” individual is entitled to recover noneconomic damages only when they have suffered a “serious injury” as defined within the Pennsylvania statute.  “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.A. § 1702.
 
In New Jersey, an individual who has elected the “limitation on lawsuit” option is entitled to recover noneconomic damages only if they have sustained “a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.”  See N.J. Stat. § 39:6A-8.  Further, a treating physician must certify that the injuries meet this requirement.
 
The general consensus is that the New Jersey standard is more difficult to overcome in that it often requires the injured individual to prove that their injuries are permanent.  Additionally, this showing of permanency must be supported by a treating physician.  On the other hand, the Pennsylvania standard tends to focus more on the impact that the injuries have had on the plaintiff’s life, requiring only proof of “serious impairment of body function.”  The Pennsylvania standard does not require a showing of permanency nor does it require the certification of a physician. 
 
If you have been injured in a motor vehicle accident and are concerned that your election of the “Limited Tort” of “limitation on lawsuit” option will limit your recovery, contact the experienced attorneys at Stark & Stark for a free consultation.
 
Ian Abovitz is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Mr. Abovitz.