Full Tort Auto Injury Coverage Expanded (A Bit)

Consistently through the years we have in this paper urged all who are purchasing automobile liability insurance to opt for full tort coverage under the Motor Vehicle Financial Responsibility Law (“MVFRL”) (as opposed to limited tort).  It will cost you a higher premium (approximately 20% more), but one we believe is fully justified.

Full tort coverage permits the owner of a policy to seek compensation for any injuries sustained in an accident.  A limited tort policy imposes a severe limitation upon the claim of a policyholder; it permits a claim for “non-economic” damages (i.e., pain and suffering) only if it determined that the policyholder has a “serious injury” which is defined in the Act as  “A personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.”  The courts have imposed a heavy burden of proof upon those who claim serious injuries, and ultimately whether an injury is “serious” is for a jury to determine.   In many lawsuits where the negligence of the other driver is clear and uncontestable, claims for physical injuries which would normally be compensable are denied.

The “serious injury” limitation applies to injuries to the policyholder and any spouse, minors, or other relatives who live with the policyholder.  A question raised before the Pennsylvania Superior Court, McWhinney v. the Estate of Janet R. Strickler, involved a person who had the permission of the policyholder to drive his car but who was not living with the policyholder.  It was the position of the defense in the lawsuit that the “serious injury” limitation of the policyholder barred the driver from making a claim for non-economic damages since the driver had the permission of the policyholder to drive the car.

Not so, said the Superior Court.  The limitation imposed upon members of the policyholder’s household did not extend to the driver who was not such a member, even though she was engaged to marry the policyholder.  Instead under section 1705(b)(3) of the MVFRL it was not necessary for her to establish that she suffered “serious injury”, and she was eligible to seek non-economic damages as a “third party”.

You may wonder why this relatively important issue has not been resolved by now since the MVFRL was revised more than 20 years ago to create the full and limited tort options.  The likely explanation is that if an injured party has not suffered a “serious injury” as defined by the MVFRL, the amount of potential recovery is not great by its nature and not great enough to justify the expense of appeal to the higher court.  
Ken Butera 

Posted in Vehicle  |  Leave a comment

Leave a thought...