Is this serious injury under limited tort in PA?

Asked about 4 years ago - Erie, PA

Driver stated he "fell asleep at the wheel, had been sick and taking cold medicine" and ran red light. Charged with violation of traffic control signal. Police report - admitted fault and verified by 4 witnesses.

Hit spouse at 55 mph into drivers side door while making a left turn at, 35 minute to get him "cut" out of the car- unconscious intermittently. Transported by EMS to ER - injuries - fractured left ankle, concussion, blood in urine. Admitted to hospital - surgery on 3rd day for repair of ankle with 3 pins inserted. Released next evening - 3 nights/4 days in hospital. We have limited tort but do not remember electing that as we moved to PA from NY 2 years ago. Driver is 23 year old student - we have only spoken with our insurance and have no idea what his coverage is.

Attorney answers (3)

  1. Eric John Purchase

    Contributor Level 12

    1

    Lawyer agrees

    3

    Answered . Short answer is you probably have or will meet the limited tort threshold, but I can't guarantee it.

    There are a bunch of issues presented by your question. The first is whether or not you validly elected limited tort. Every PA policy must include the offer of limited tort as an option but if you don't voluntarily elect limited tort then the policy defaults to full tort. Because you don't recall making the election, it could be that a mistake was made by your carrier. You should ask your carrier for a copy of your signed election form.

    The next group of issues presented relates to whether or not any of the general exceptions to limited tort apply. For example, was the other driver a PA driver? From your description, it sounds like the other driver was not charged with DUI but if he was a conviction or ARD would take you outside the scope of limited tort. Are there any other auto insurance policies in your household or on which your spouse would qualify as an insured? There are a number of other exceptions that bear examining.

    Finally, if we are satisfied that the limited tort option applies, we come to the question of serious injury. There are two ways of getting past the serious injury threshold that seem likely to apply here. The first is serious and permanent disfigurement. Your spouse may have scarring from the surgery that might implicate this requirement. The second is serious impairment of a bodily function. Determining whether or not an injury constitutes a serious impairment of a bodily function requires consideration of a multitude of factors, including: the length of time there is an impairment, the degree of impairment, the importance of the bodily function impaired, and the impact of the impairment on the life of the injured person, among other issues.

    It seems very likely to me that the injuries you describe are sufficient to get past summary judgment. Thus, a jury may one day be given the definition of serious injury and asked to make the determination after a trial. So, it's impossible to guarantee a particular outcome. However, I think you've got a strong likelihood of settling the case short of trial or prevailing at trial, if it comes to that.

    You should consider contacting an experienced PA lawyer who handles personal injury cases to discuss it further. I'd be happy to discuss it with you if you'd like. 814-833-7100.

  2. Dale G. Larrimore

    Contributor Level 12

    Answered . Mr. Purchase has given you an excellent summary of the pertinent issues. I recommend that you (or your spouse) keep a record of how this injury affects his life. What activities is he unable to engage in, now, and for the next several months. To prove a "serious injury," you have to prove a "serious impairment of body function" and this involves you or your husband being able to testify about the impact that this injury had on his life and on his life activities.

    I agree that you will need legal advice. When hiring an attorney, I strongly recommend that you find an attorney who is a member of the Pennsylvania Association for Justice. You can find such an attorney on the web site at www.pajustice.org. These are the attorneys who concentrate their law practices in representing the innocent and injured victims of tragedy such as this. Mr. Purchase is from Erie and he would certainly be an excellent attorney to represent you in this matter.

    Dale Larrimore

  3. Timothy F. Rayne

    Pro

    Contributor Level 9

    Answered . There are exceptions to the Limited Tort bar so you should get advice from an attorney in person. If you have long term effects on your ability to use the ankle you could get over the Limited Tort issue. You should contact an experienced Personal Injury Attorney for more advice. Good luck.

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