Alexander J. Chotkowski, Esquire

Do you have "limited tort" or "full tort" on your insurance? And do you know what your selection means? Astonishingly, there are many individuals in Pennsylvania who cannot accurately answer that question, even though their choice could result in a loss of thousands of dollars to a prospective claim. Many insured are also unable to explain what effect having limited tort may have on their coverage or the coverage of those who ride with them. Pennsylvania enacted the Motor Vehicle Financial Responsibility Law (MVFRL) 75 P.S. Section 1705 more than 20 years ago and, ever since, the Courts have been trying to clarify the impact of this important law.

The MVFRL mandates that all insured in Pennsylvania sign a document acknowledging that they were advised of their options for selecting either limited tort or full tort for their motor vehicle insurance policy. Keep in mind that your insurance policy is a contract between you and your insurance company. The trade-off in selecting limited tort is lower premiums for you, but in return, the insurance industry as a whole enjoys the prospective benefit that fewer people will be able to bring claims against their insured unless the injuries justify a recovery.

"Ecomonic" and "Non-economic" Losses
There are at least two types of recoveries that are contemplated under a motor vehicle injury related claim: "economic" and "non-economic" losses. Economic losses are lost wages, vehicle damages, medical bills and other "out-of-pocket" losses. Non-economic losses are the ones that are most feared by the insurance industry as those are sometimes the subjective "pain and suffering" types of losses. Non-economic losses are determined by a jury, subject to the intricacies of our adversarial process at trial.

Claims Under Limited Tort
The application of limited tort on a policy would arise in the event of a motor vehicle accident, where the individuals-though not at fault for the accident suffered injuries-selected the limited tort option on their policy. Depending on the nature of the injuries sustained, the pain and suffering part of the claim could be barred. The limited tort provision can preclude claims for non-economic injuries, or pain and suffering types of losses, unless the injury or injuries qualify to pierce the barrier of limited tort.

Confusion surrounds claims for non-economic loss because the MVFRL does not clearly define what types of injuries qualify as being subject to the limited tort option. In the MVFRL, "serious injury" is defined as "[a] personal injury resulting in death, serious impairment of a body function or permanent serious disfigurement." (See 75 Pa.C.S. § 1702.) When a statute is vague or ambiguous about an important term, such as "serious injury," the question then becomes one for our judiciary to resolve. This is often a difficult and imprecise undertaking; the result is that even after 20 years of this law being in effect, the meaning of a serious injury is still not clearly defined by our legislature or by the courts. Hence, most insured and their insurance agents, considering the limited tort provision simply do not know what effect it may have on them in the future.

Did Serious Injury Occur?
Initially, under the Pennsylvania Superior Court's holding in Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), the determination of whether a limited tort elector had suffered a serious injury was one that was initially made by the trial court judge. However, this was changed by the Pennsylvania Supreme Court in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), which stated that the threshold determination was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained. An insured under the limited tort option may maintain an action for non-economic loss if they can prove that they suffered a serious injury as defined in the Act. (See 75 Pa.C.S. § 1705(d).) The MFVRL, section 1701 et seq., was originally modeled by the Pennsylvania Legislature after a similar Michigan statute, causing our courts to turn to Michigan case law for guidance on this issue. See DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986).

In Murray v. McCann, 442 Pa. Super. 30, 658 A.2d 404 (1995), the Pennsylvania Supreme Court undertook to better define what should be considered a serious injury, and in doing so the Court adopted the definition of "serious impairment of body function" set forth in the seminal case of DiFranco v. Pickard, 427 Mich. 32, 37, 398 N.W.2d 896, 900 (1986), which states that:

"The 'serious impairment of body function' threshold contains two inquiries:

(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?

(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment . . . . In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious." Washington v. Baxter, 553 Pa. at 447, 719 A.2d at 740.

The Murray case helped to describe how to evaluate whether an injury was "serious," but it still requires a "case-by-case" consideration. Thus, with respect to the application of a limited tort selection, the impact of a back strain for one plaintiff may be evaluated differently for another plaintiff with the same injury. It depends upon how that injury has affected the plaintiff to determine whether a limited tort selection will preclude a claim.

As the courts attempt to tackle this quandary, many different results have occurred in considering these factors. For instance, in Carlino v. Bartley, 49 Pa. D. & C.4th 1 (Pa. D. & C. 2000), a motor vehicle negligence case, the plaintiff suffered a fractured vertebral bone and other injuries to her back. The plaintiff was a passenger in a motor vehicle driven by defendant, Lisa Bartley, when the parties were involved in a multi-vehicle accident. Defendant Bartley argued that the plaintiff's injuries were not "serious injuries" and therefore the claim should be dismissed because the plaintiff's mother had a limited tort selection on her motor vehicle insurance.

The Court, however, denied the defendant's argument. The Court noted that the plaintiff was hospitalized for six days after the accident, in which she sustained a fractured vertebral bone with a fragment that separated from the rest of the bone. The plaintiff also sustained other injuries to her back. The Court noted that the plaintiff was prohibited from working her part-time job for two months following the accident. Moreover, when the plaintiff filed her complaint one year after the accident, she was unable to engage in recreational sports that involved strenuous activity, ride amusement park rides, or sit for long durations. The Court also noted that the medical testimony indicated that the plaintiff "might" need surgery in the future, that her spine showed degenerative disc disease in the area of her previous fracture and that her spine was bent irregularly forward and sideways at the location of the fracture. The Court found that dismissing the claim at that point was not appropriate because there was sufficient evidence to allow the question to be resolved by a jury. "Reasonable minds could differ on this matter, and it is therefore a matter for jury determination," the Court concluded.

The "Soft Tissue" Factor
"Soft tissue" injuries are particularly susceptible to the assertion of the limited tort selection defense. However, this is not always a strict bar to such a claim. In Rueckl v. Croyle, 34 Pa. D. & C.4th 4 (Pa. D. & C. 1996), the plaintiff was injured when the motor vehicle in which she was driving was struck from behind by a motor vehicle driven by the defendant. In her complaint, the plaintiff maintained that she suffered neck, back and shoulder pain, a loss of strength in her left hand and arm, and whiplash injuries-injuries that were generally categorized as being soft tissue injuries because the discomfort and pain could not be objectively measured. However, the plaintiff was diagnosed with chronic myofascial pain syndrome as well as related depression. Defendant argued that the plaintiff had not suffered a serious injury. The Court in Rueckl v. Croyle determined that based on the evidence presented and the standard applied, the injuries the plaintiff sustained in the accident had caused a serious impairment of her body function and, therefore, she was not precluded from recovering non-economic damages. The Court further stated: "An impairment involves more than the injury itself. The consequences of the injury must involve a serious impact for an extended period of time on a plaintiff's life. . . . It must interfere substantially with the plaintiff's normal activities and not impose a mild or slight limitation." Id. at 499, 665 A.2d at 1234. Notably, in her deposition, the plaintiff testified that the injuries she sustained from the accident prevented her from participating in the same hobbies that she had enjoyed prior to the accident, such as snow skiing, windsurfing, water-skiing, and mountain biking.

Consider Your Options Carefully
While the limited tort selection on Pennsylvania insurance policies continues to be an option for insured to consider on their motor vehicle policies, "buyer beware" because what it means today may not be what it means later. Think carefully; the premiums you save now could cost you significantly in the future should you be involved in a motor vehicle accident that was not your fault. The limited tort selection has effectively worked to limit many claims that were minor and did not result in a serious or permanent injury, however, there still is not a bright line rule used to allow claimants or others to clearly understand what injuries will or will not fall within the boundaries of the limited tort selection. In considering your tort options, ask questions, possibly consult a lawyer and then weigh the benefits against the possible consequences.

MacElree Harvey
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