When a Pennsylvania driver buys auto insurance, they must choose a “tort option.” The choices available when choosing a tort option are “Full Tort” and “Limited Tort.” These refer to the driver’s rights to sue for injuries when another driver causes an accident.
A driver who chooses limited tort is limited in their right to sue for injuries sustained in a car accident and can only sue if they have sustained what the law calls “Serious injury.” Serious Injury is defined in the Motor Vehicle Code as: ”[A] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” A driver who chooses full tort can sue for any injury at all and is not limited.
Perversely, limited tort policies are more common in congested metropolitan areas where accidents themselves are more common. According to this study, 60 percent of the policies issued in the metropolitan areas of Pennsylvania are limited tort policies.
As a practical matter, insurance companies will refuse to settle with someone who has chosen limited tort unless they have very serious injuries. Even worse, many lawyers won’t accept people with limited tort as clients because the risk of recovering nothing (which is a financial loss to the law firm) is higher than with full tort clients. Representing a limited tort client with injuries that may or may not legally qualify as “serious injuries” also means that the lawyer will have to win two cases: one getting the client over the limited tort threshold and the other winning the case.
It’s tough when someone comes to me in pain and angry saying they want to sue the so-and-so who hit them and I have to tell them that I can’t help because of a choice that they made when buying insurance several years ago.
Some don’t believe me or turn their anger on me. Some even think I’m secretly lying to them on behalf of insurance companies. I hate telling hurt people that I can’t help them, and over the years I have developed some tips and tricks to get around the fact that an injured party has chosen limited tort.
- “Full Coverage” does not mean “Full Tort.” A lot of times I ask a potential client if they have full tort and they knowingly look me in the eye and insist that they have “full coverage.” This is, in many ways, a worse situation than the client who doesn’t even know what his or her tort option is, as this client believes that they have everything and can’t have possibly made a bad choice or missed anything. Let me make this clear: full coverage means full coverage against people suing you, not the other way around.
- Check your tort option on the declarations page of your policy. At least once a year your auto insurer will mail you a copy of your auto insurance policy and new insurance cards. The tort option in effect on your policy will be in the declarations section of the actual policy and not on the insurance card. If you don’t have or don’t know what the actual policy is, call or write to whoever sold you the policy and ask for a reprint of the policy with declarations. The actual policy has a section entitled declarations which sets forth things like how much insurance you have, how much medical benefit, whether you have lost wages coverage, etc. and there will be a line in there which says full tort option or limited tort option.
- If you have limited tort, you have to sign a new form to get out of it going forward. A call to your agent is not enough, pursuant to 75 Pa. C.S. §1705(b)(1), all renewals of a policy will have the same tort option unless a new tort option election form is filled out.
If It is too late and you have been in an accident, but have elected limited tort on your own insurance:
- Do you have serious injuries? It is possible that you have injuries that are serious enough that you can sue, even though you elected limited tort. Additionally, various cases have found exceptions on a case-by-case basis where broken bones, herniated discs, and even minor scars on one’s body were held to be enough to allow recovery, even though the injured party had elected limited tort.
- The statutory exceptions. There are six fact patterns set forth at 75 Pa. C.S. §1705(d)(1) and (d)(2) in which the legislature has specifically indicated that you can proceed as a full tort claimant, even though you elected limited tort:
- If you are injured by an impaired driver who is later convicted of DUI or charged with DUI and accepts ARD, or;
- If you are injured by a driver who Is operating a vehicle that is registered in another state, or;
- If you are injured by a driver who intended to harm himself or someone else, or;
- If you are injured by a driver who is driving without insurance, or;
- If you are injured and that injury was caused by a defect in the vehicle or defect in repairs to the vehicle, or;
- If you are injured while you were an occupant of a motor vehicle other than a private passenger motor vehicle, for example, while riding in a taxicab.
- The case law exception. Consistent with L.S. ex. rel. V. Eschbach 583 Pa.. 47, 874 A.2d 1150 (2005), if you are hit by a car while walking or while riding a bicycle you can sue as if you chose the full tort option.
- The paperwork. In Eschbach, the court noted a legislative preference for a finding of full tort where there is some confusion or lack of clarity as to what the driver elected. In 75 Pa. C.S. §1705(a)(1), the legislature set forth the specific language that must be used in the tort option election form. Accordingly, where the driver never signed the form or the insurance company can not produce a copy of the signed form, the full tort option would apply. Similarly, where the language n the form that the driver signed deviates from the language mandated by Section 1705 the election would be defective, again with the effect that the driver would be treated as a full tort claimant.
When presented with an injured client that believes they elected limited tort rights, counsel should make a careful investigation into the injury-causing accident to see if any exceptions apply. If no exceptions apply, counsel should contact the clients own auto insurer an obtain a copy of the signed election form to ensure that the client did, in fact, execute a properly worded tort option election form.
Have a tort case you want to fight? Any other personal injury woes? Check out Joe’s Practice Areas for more information on how we can help you and your case!