Written by Marc Simon, Esquire
The limited tort statute isn’t simple. It’s fraught with oft-debated legal intricacies that require a deep understanding of Pennsylvania’s motor vehicle code, Title 75. Unfortunately, these intricacies are sometimes overlooked and potentially viable injury claims are dismissed without proper and fair evaluation. Despite what the insurance companies will have you believe, limited tort isn’t always what it seems. Just because an insurance company says that your client is bound by limited tort, doesn’t make it so. And just because an insurance company says your client doesn’t pierce the threshold doesn’t mean a jury won’t believe her injuries to be serious. Injured plaintiffs deserve a knowledgeable and aggressive advocate to help navigate the murky waters of limited tort litigation.
1. LIMITED TORT DOESN’T ALWAYS MEAN LIMITED TORT
Just because a declarations page or an insurance application says “limited tort”, the policy isn’t necessarily a limited tort policy. To the layperson, this is confusing, paradoxical and downright odd. Such is the law. Limited tort is a legal question, not a factual one. While informative, a “dec” page and insurance application have no legal bearing on an insured’s tort status. There’s only one way for defense counsel to legally demonstrate that an insurance policy is limited tort is to produce a signed tort election form.
Since section 1705(a)(2) of Title 75 requires that limited tort be affirmatively elected, then where “no tort election is made, the named insured, and those that he is empowered to bind by his choice are conclusively presumed to have chosen the full tort alternative.” As the Superior Court held in Hockenberry v. Liberty Mutual (a non-precedential decision), a defendant cannot meet its burden of proving a plaintiff is limited tort without that election form. Limited tort is an affirmative defense that, if raised by the defendant, must then be proven by the defendant. Absent the election form, a limited tort policy is not actually a limited tort policy.
2. THE LIMITED REACH OF LIMITED TORT ELECTION FORMS
Even with a signed election form, never concede your client’s limited tort status. It’s still the defendant’s burden to prove that he/she is deemed limited tort. Not everyone identified in an auto insurance policy is bound by the tort election. A limited tort election form only applies to only two (2) types of plaintiffs: i) a “named insured” on the policy, or ii) a resident relatives of a “named insured” on the policy. Never concede that your client is limited tort simply because her name appears somewhere on a limited tort policy. If you’re client is not one of these people, she could and should be deemed full tort.
What then exactly is a “named insured”? According to the Superior Court “[a] plain reading of the definition of “named insured” in Section 1705(f) yields that only one identified by name as an insured on the policy is, in fact, a ‘named insured.’”McWeeney v. Estate of Strickler, 61 A.3d 1023 (Pa. Super. 2013). A “named insured” is only the person(s) identified as such on the policy. No one else. The definition is very simple and very narrow. The Superior Court made clear that it’s not an additional driver, a permissive driver, or anyone else for that matter. If you’re client isn’t a “named insured” (or resident relative thereof), she could and should be deemed full tort.
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3. JURIES, NOT LAWYERS, DECIDE LIMITED TORT
Even if defense counsel produces the signed election form, your case isn’t over. In fact, it’s just beginning. Now that you know your client is deemed limited tort, you can focus on the quintessential limited tort question: Does your client’s injury constitute a serious impairment of a body function? But this isn’t a question for you, the insurance company, defense counsel or even the Judge. It’s not up to any of us. Limited tort is, always has been, and always will be a question for the jury. By aggressively litigating for you limited tort clients, you can send a message to the insurance company. They don’t get to decide how serious your client’s injury is. You are willing to put the question of “serious impairment” in front of twelve (12) strangers in a box and let them decide. The carrier must decide if they’re willing to do the same. You’ve taken the power away from the carriers and put it back in the hands of the jury, your greatest ally in any limited tort case.
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