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The Birth Of Limited Tort And Its “Serious Impairment” Standard

Written by Marc Simon, Esquire

The Pennsylvania Legislature modeled the existing Motor Vehicle Financial Responsibility Law, which gave birth to the limited tort doctrine, after Michigan Law. Michigan Statute Section 3135(1) reads: “A person remains subject to tort liability for non-economic loss caused by his or her ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.

Not only does Pennsylvania’s Law parallel the Michigan statute, Pennsylvania’s legislature in discussing whether to enact limited tort, acknowledged the use of Michigan law on the floor of debate:

MR. FRIEND….What we have just done is passed an optional no-fault which has a verbal threshold, which in fact is the Michigan verbal threshold…. Legislative Journal – House, No. 42, June 13, 1989, p. 986.

Pennsylvania’s Law became effective on July 1, 1990. The applicable section of The Pennsylvania Motor Vehicle Financial Responsibility Law states:

(4) Limited tort alternative. – Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to the applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss… 75 Pa.C.S.A § 1705(d).

The Supreme Court in Washington v. Baxter, Jr., specifically adopted the Michigan standard for determining a serious injury as set forth above. The Pennsylvania Supreme Court in interpreting 75 Pa.C.S.A. § 1705, recognized that as in any statutory interpretation, the Court should examine the specific language of the statute in question. However, when an ambiguity exists in the terms set forth in the statute, (such as the ambiguity of Pennsylvania’s definition of “serious injury”), the Court held that it should then determine the Legislative intent behind the statute. The Court in Washington held that the legislative intent indicates a reliance on and understanding of Michigan Law. In the landmark case of DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2nd 899 (1986), the Michigan Supreme Court rethought and reworked the Michigan motor vehicle law providing plaintiffs subject to the tort threshold a greater ability to recover non-economic damages.

The DiFranco Court established the following guidelines:

3) The Legislature did not intend to limit recovery of non-economic damages to the catastrophically injured. The “serious impairment of body function” threshold is a significant, but not extraordinarily high, obstacle to recovering such damages
4) The impairment need not be of the entire body function or of an important body function. Section 3135(1) bars recovery of non-economic damages to those persons who suffered minor injuries, or injuries which did not seriously impair the ability of the body, in whole or in part, to function.
5) The “general ability to live a normal life” test will no longer be used to determine whether the plaintiff suffered a serious impairment of body function.
6)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 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.

7) In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the particular body function impaired, 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.
8) When the threshold question is submitted to the jury, it should be instructed as to the two-fold nature of the “serious impairment of body function: threshold, and the factors to be considered in determining seriousness.
9) Section 3135 (1) and Cassidy require the plaintiff to prove that his non-economic losses arose out of a medically identifiable injury which seriously impaired a body function. The interpretation of Cassidy’s “objectively manifested injury” requirement adopted in Williams v. Payne, 131 Mich. App. 403, 346 N.W. 2d 564 (1984), is rejected…(emphasis added). DiFranco, supra, at pages 900-901.

As stated above, in Washington, the Supreme Court of Pennsylvania expressly adopted the standard for determining “serious injury” as set forth by the Michigan Court in DiFranco. 75 Pa. C.S.A. §1702 defines serious injury as “a personal injury resulting in death, seriously impairment of bodily function, or permanent disfigurement.” However, the Court in Washington held that neither the Pennsylvania Legislature, nor the terms of the statute offer any assistance in defining “serious impairment of bodily function.” Therefore, it has been left predominately to juries to define “serious impairment of bodily function” on a case-by-case basis.

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