Are You Serious???!!!

If you want to recover noneconomic damages when you have chosen the limited tort option on your auto policy in PA, unless you meet one of the other named exceptions ( don’t-get-fooled-get-full-tort,) you have to sustain a serious injury within the meaning of the statute to do so. Otherwise, you are limited to recovery of certain unpaid medical expenses, wage loss and property damage. The limited tort option means what it says...damages which are recoverable as a result of a motor vehicle accident (MVA) are limited by the choice of this option under Section 1705 (d) of the Motor Vehicle Financial Responsibility Law( MVFRL) unless certain exceptions are met.

For the purpose of this discussion, the exception to be explored is the serious injury exception, which is most commonly attempted where the other clear cut exceptions do not apply.  Under Section 1705 (d) one must prove a “serious injury” in order to prevail in a claim for noneconomic damages such as pain and suffering.  In Section 1702 of the MVFRL, serious injury is defined as “a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.”   75 Pa. C.S.§ 1702 

It was not further defined in the statute, which naturally resulted in litigation of this most important issue.  Although there are few cases, the ones which do interpret it are stringent in their requirements:

In McGee v. Muldowney, 2000 PA Super 116; 750 A.2d 912 (2000), the Superior Court established the criteria for a threshold determination of whether or not a serious injury had been suffered by the Plaintiff. The Court first emphasized that unless reasonable minds could not differ on the conclusion, the conclusion as to whether a plaintiff suffered a serious injury within the meaning of the statute was not to be determined by a trial court upon the filing of a motion for a summary judgment by the defendant in a limited tort case, but left to a jury to determine.  Washington v. Baxter, 553 PA. 434, 719 A. 2d 733 (1998)

In the Washington case, the Court noted that neither the legislative history of the MVFRL nor the Michigan statute upon which it was based intended such a procedure, but rather left it to the jury to determine.  The Court then proceeded to look to Michigan precedent again to define “serious impairment of a body function and adopted the definition elucidated in a Michigan case, DiFranco v. Pickard, 427 Mich. 32, 398 N.W. 896 (1986) as follows:

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 the 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…. In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, 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.  DiFranco, 398 N.W.2d at 901. Washington v. Baxter, 553 Pa. at 446-48, 719 A.2d at 740 (footnotes omitted).

The McGee court noted as follows:  The Supreme Court emphasized that "the question to be answered is not whether appellant has adduced sufficient evidence to show that appellant suffered any injury; rather, the question is whether appellant has shown that he has suffered a serious injury such that a body function has been seriously impaired." Id. at 449, 719 A.2d at 741 (emphasis in original). See also: Kelly v. Ziolko, 1999 PA Super 157, 734 A.2d 893, 899 (Pa.Super. 1999).

The McGee court then examined the evidence and found that there was no serious injury based upon the following paragraph:

“Simply put, appellant was examined and treated on several occasions during the six months following the accident, but did not seek any medical attention (except for the visits to Dr. Mannhertz on December 20, 1993, and May 31, 1994) during the next five and one-half years which preceded the answers which he filed to the motion of appellee for summary judgment. Moreover, during that same period he was employed full time in a trade.

In summary, appellant has failed to present objective medical evidence as to the degree of any impairment and extent of any pain suffered during the five years preceding those answers to the motion for summary judgment. The subjective allegations presented by appellant, in the absence of objective medical evidence, do not permit a finding that appellant suffered the requisite "serious injury." While appellant has established that he suffered some injuries to his back and shoulder, he has, nonetheless, failed to establish that these injuries resulted in such substantial interference with any bodily function as to permit a conclusion that the injuries have resulted in a serious impact on his life for an extended period of time. The decision, therefore, was not to be left to a jury, because "reasonable minds could not [here] differ on the issue of whether a serious injury had been sustained."  citing Washington v. Baxter, supra at 446, 719 A.2d at 740.

A careful reading of the Court’s language makes it clear that the medical treatment pursued and other factors can make a critical difference in whether a limited tort claim will withstand the McGee analysis. If you purchase full tort coverage, none of this would be necessary and you could make a claim for pain and suffering. Call my office at 215-752-3732 if you need advice. I am here to extend a helping hand.