How to Win a Limited Tort Case in Pennsylvania
If you selected limited tort for your auto policy you saved a few hundred dollars but relinquished important rights in the event of an accident. To receive money for your injury you must establish a substantial impairment of body function or prove an exception to limited tort to win your case.
Limited Tort - The Pros do not outweigh the ConsLimited tort was designed to save insurance companies money by restricting your right to succesfully make an insurance claim for pain and suffering. Just because the accident was not your fault, does not mean the other insurance company will pay for your non-economic injury. While the at fault carrier may pay for your car, towing, storage and perhaps some of your lost wages, they will not pay for your injury even if you have documentation from the ER and your physical therapist. So, in the end, while you have selected limited tort to save a few hundred dollars on your premium, you have also relinquished your right to be compensated for your injury. Simple soft tissue damage like sprain and strain without more is not legally compensable. In a limited tort case you must now prove a serious impairment of body function that substantially affects daily living activities. Most attorneys will not take limited tort cases because of this high burden of proof. Therefore, the few hundred dollars savings on your premium is not worth losing your case that could have been worth many thousands of dollars had you selected full tort. It's not too late. Before an accident happens, call your agent and upgrade your policy to full tort. If you do so you will have protected all resident relatives living in your household from the limited tort penalty. However, a skilled attorney who has handled limited tort cases can give you the best chance to prevail when you are subject to the limited tort penalty.
Proving a sufficient InjuryA fracture or surgery or meaningful scarring or disfigurment is the easiest way to prove a sufficient injury to overcome the other insurance company's limited tort defense. However, as stated earlier, strain and sprain without more means that at fault insurance carrier will reject your claim. No matter what your injury is, even if it is soft tissue in nature, if your doctor certifies that you are disabled from work or if your work duties have been significantly modified to a light duty position, then your injury will likely be sufficient to overcome the limited tort defense. This is the best way to show that your injury has substantially affected your daily living activtities.
The Exceptions - When Limited Tort Does Not ApplyMost attorneys do not understand how to win a limited tort case. Before you agree not to pursue your limited tort claim make sure that your attorney has examined the most common exceptions to limited tort because one may apply in your case. Proving an exception means that limited tort does not apply and all you have to prove is that you were injured in some way. When an exception applies the at fault carrier treats you just as if you had purchased full tort coverage. If it is too early to know if an exception applies in your case because the police report is not available, the best plan is to set up your medical claim and treat for your injury because you need to do that anyway; otherwise you would not be meeting with an attorney. When all the information is known, the most frequent factual scenarios to eliminating the limited tort penalty include being in a commercial vehicle, the other driver's vehicle's license plate is registered in another state or the other driver was arrested for DUI.
Examination of Policy DocumentsMost clients do not understand what limited tort means when they purchase their auto insurance. Just because your agent told you that you have "full coverage" this is not the same as having "full tort." So don't be fooled. In order to be subject to the limited tort penalty for an accident that you did not cause, you must have signed a tort selection form supplied to you by your insurance company or agent. It is no defense if you did not read the form or did not understand it because you speak a foreign language. If you signed it, and selected limited tort instead of full tort, then you are deemed to have understood it. However, sometimes the insurance agent forgets to have you sign the form. Also, there are instances where the insurance company loses the form. Additionally, there are situations where the insurance company provides you with a policy but does not get you the tort selection form to sign right away. If an accident happens and you are injured while the policy is enforce but before you sign the tort selection form, then you would be entitled to full tort rights as a matter of law and the burden of showing a more serious injury does not apply. Often times a phone call to the agent will determine if your insurance company has your tort selection form so a review of that can be made in your attorneys office at your initial meeting. If your insurance company cannot produce a signed tort selection form then the at fault driver's carrier cannot use the limited tort defense even if your policy species you are limited tort.