Posts Tagged ‘motor vehicle accident’

Question?  What is Limited Tort in Pennsylvania?

Limited Tort or Full Tort?  That is the question.  Unfortunately, it is one of the most common questions after a motor vehicle accident and many people do not know the answer until they are sitting in the conference room of one of the DLP offices.  Quite simply, Limited Tort means limited protection for you and your family.  Full Tort means fulls protection.  With Full Tort, you can collect compensatory damages for any and all injuries.  With Limited Tort, you may be limited to collecting only Economic Damages from a negligent third party after a motor vehicle accident.  This means that you may have given up your right to seek compensation for non-economic damages such as: pain and suffering, loss of life’s pleasures, humiliation and embarrassment.  You have to jump through an extra hoop of proving a “serious impairment of a body function” before you can be compensated for the non-economic damages noted above.    

The Pennsylvania Supreme Court defined “serious impairment of a body function”  in Washington v. Baxter.  The seroius impairment of a body function threshold contains two inquiries: 1) What body function, if any, was impaired because of injuries sustained in the motor vehicle accident?, 2) Was the impairment of the body function serious? The focus of these questions is not on the injury itself but on how the injuries affected a particular function.  Proving these extra questions can be very challenging in court.  Hence, simply selecting Full Tort avoids this exercise and keeps you, your family and friends properly protected. 

The lawyers at DLP are ready to serve you after a motor vehicle, motor cylce,  tractor trailer or work related injury.  Simply call 

 (570) C-A-L-L-D-L-P!    Remember Injury? Call DLP.

Update- In an earlier post (set forth below) I discussed subrogation rights of an employer who has paid Heart and Lung Act benefits to an injured employee.  On January 28, 2011, the Pennsylvania Supreme Court issued a decision In Oliver v. City of Pittsburgh holding that Heart and Lung and Act Benefits are not subrogable. 

        Under the Pennsylvania Workers Compensation Act, when an employer has paid benefits to an injured worker as a result of a work injury that was caused by the negligence of a third party, the employer is entitled to recoup whatever benefits it has paid from the injured employee’s recovery from the negligent third party. This concept, known as subrogation, often comes in to play when an employee is injured in a motor vehicle accident while in the course and scope of employment.
Generally speaking, the employer’s subrogation rights are absolute with regard to recouping payments made under the workers Compensation Act. An interesting issue has arisen in this Commonwealth with respect to subrogation rights of a municipality with respect to benefits paid under the Heart and Lung Act. The Heart and Lung act addresses payments made to a certain class of employees (i.e. police officers, firefighters, etc.) for injuries incurred while “in the performance of (their) duties”. The key distinction between workers compensation wage loss benefits and Heart and Lung benefits is that workers compensation benefits are generally 2/3 (or 66.66%) of an employee’s pre-injury earnings while Heart and Lung benefits are 100% of the employee’s pre-injury pay.
In 2009, the Pennsylvania Commonwealth Court addressed the issue of a municipality’s subrogation rights relative to payment of Heart and Lung benefits. In Oliver v. City of Pittsburgh, the court held that an employer that pays benefits under the Heart and Lung Act is entitled to subrogate against the injured employee’s third party recovery. This decision effectively reversed a prior Commonwealth Court ruling from 2002 that held an employer, while having a right to subrogation relative to benefits paid under the Workers Compensation Act, did not have the right to subrogate as to the Heart and Lung benefits paid.
Again, as indicated above, the Pennsylvania Supreme Court has reversed the Pennsylvania Commonwealth Court and has held that Heart and Lung and Act Benefits are not subrogable.

Jody was driving down Main Street in Honesdale in the left hand lane when Felix abruptly came around the corner from 9^th Street. Felix did not realize that Main Street was one way. Jody tried to turn to the right, but did not have enough time and a violent impact took place. Jody suffered several broken ribs and punctured one of her lungs. After about six months though, Jody had made a good recovery. Jody was told by an attorney that she could not bring an action against Felix because she had selected the limited tort option. Felix was a New Jersey resident driving a vehicle registered in New Jersey.

ISSUE:            Was Jody given sound legal advice?

ANSWER:            No. Because of the fact that Felix is licensed in New Jersey and a resident of New Jersey, Jody is allowed to proceed with a civil action regardless of the severity of her injuries. One of the exceptions to the Automobile Act regarding limited tort is that if the negligent party is from out of state, one could pursue action regardless of the extent of her injuries. As a general rule, in other words, general tort does not apply when there is an out of state licensed driver.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive.  Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column. 

Sandy was seriously hurt in a motor vehicle accident which was not her fault. Sandy went to an attorney recommended to her by one of her friends. The attorney promised to represent her and attempt to settle her case and, if necessary, file suit. As months passed by Sandy became very frustrated as the attorney neither returned her calls or kept telling her that he was keeping track of things and was attempting to settle her case. Finally, Sandy had enough with the delay and found out that the attorney that she had gone to had never filed a suit within the two years in which she was allowed, under the law, to bring the suit. Sandy was furious and decided she was going to sue her lawyer.

ISSUE: Sandy quickly found out that her lawyer had no legal malpractice insurance and she wondered if a lawyer can practice without legal malpractice insurance.

ANSWER: Yes. Legal malpractice insurance is not required in Pennsylvania. Nevertheless, a lawyer that does not carry professional liability insurance, is required to inform all new clients, in writing, that he or she does not have professional liability insurance or at least $100,000.00 per occurrence or $300,000.00 total. This is required under the rules of professional conduct. It has also been in effect for about three years.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

Jennifer was traveling east on Route 6 between Tafton and Milford, when all of a sudden and without warning Sleepy Sam, driving in the opposite direction, crossed the center line causing an almost head-on collision. The state police were quick to investigate and Sleepy Sam had a .06 blood alcohol level, according to the police report. Since the blood alcohol level was below .08, it was insufficient to charge Sam with driving under the influence.

It came out during litigation, though, that Sam was taking special medication which had specific instructions on it that it was NOT to be taken with alcohol. As it turned out, the medication along with the alcohol, as all the medical experts agreed, would have impaired Sam’s ability to drive.

Issue: Will the combination of the medication and the alcohol be admissible in evidence?

Answer: Yes. Pennsylvania law defines “driving under the influence” to include not only alcohol but also a controlled substance and/or a combination of both. Even if Sam was not aware of the effects of the combination, he would be liable for the effects of the same.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

In a recent settlement, personal injury Attorney Brian Walsh of the DLP law firm secured an award of the insurance policy limits ($300,000.00) for an injured motorist who had initially agreed to settle the case for $3,000.00.

Plaintiff, a 19 year old male, was injured in a motor vehicle accident.

Within a week of the accident, a representative from the defendant’s insurance company met with the plaintiff, who had not yet secured legal representation. The insurance representative convinced the plaintiff to sign a release settling the case for a sum of $3,000.00. The plaintiff then contacted the DLP law firm. DLP was able to void the release and ultimately settled the case for $300,000.00.

“It’s important to know your rights and not sell your claim short” commented DLP’s Brian Walsh, who represented the plaintiff and was able to secure the applicable policy limits in the case. “This gentleman thought he was getting a fair shake when he met with the adjuster. In reality, he wasn’t. Fortunately, he came to us and we were able to void the release. The settlement we were able to secure for him is fair compensation for the injuries he suffered. The moral of the story- obtain legal counsel early”, Attorney Walsh added.

A Lackawanna County Jury decided that General Motors Corp. owes a Scranton man $693,000.00 as a result of a motor vehicle accident.

The plaintiff, John Lance, suffered injuries after crashing into a tree while pulling into a driveway. Legal papers filed by personal injury Attorney Joseph Price of the DLP Law Firm alleged that the accident resulted from an improperly installed crank shaft on the plaintiff’s Chevrolet vehicle. The crash resulted in injuries throughout Mr. Lance’s spine that prevented him from working for several years.

The jury award granted $620,000.00 to Mr. Lance for pain and suffering. The remainder of the award was for medical expenses and lost wages.

The Complaint stated that the steering failed because a bolt in the crank shaft’s pulley broke causing the pulley and the harmonic balancer to fall from the front of the engine. A report prepared by General Motors subsequent to the accident appeared to confirm this contention. Attorney Price indicated “The jury was able to decide from the facts presented that there was an obvious flaw with the vehicle. This flaw caused severe injury to my client. I’m pleased that the jury saw this for what it was and issued a verdict in favor of Mr. Lance”.

In Blood v. Old Guard, the Pennsylvania Supreme Court had to determine whether an auto insurance carrier must obtain a new UM/UIM “sign down” form from an insured each time the insured modifies the amount of his liability coverage. When presented with this same issue, the Pennsylvania Superior Court determined that the insurance company did have to obtain a new UM/UIM “sign down” form whenever the insured modified his liability coverage. In the absence of a new UM/UIM “sign down” form, the Superior Court held the amount of UM/UIM coverage available to the insured was equal to the amount of his modified liability limits. The Pennsylvania Supreme Court reversed the ruling of the Pennsylvania Superior Court, holding that an auto insurance carrier is not required to have the insured execute a new UM/UIM “sign down” form whenever the insured desires to change his liability limits under an existing policy.

In Blood, the insureds purchased an auto policy from Old Guard in 1986 with $500,000 in liabiilty coverage. At the time they purchased the coverage, the insureds elected reduced UM/UIM coverage in the amount of $35,000 (albeit with the stacking option). In June of 2000, the insureds decided to lower their liability limits from $500,000 to $300,000. To this end, they executed a “coverage selection form” indicating their desire for $300,000 in liability coverage. Although the “coverage selection form” included a choice to select an amount of UM/UIM coverage, the insured indicated no selections for UM/UIM.

The insured was injured in a motor vehicle accident in August of 2000. The insured asserted that his UIM coverage amounted to $900,000 ($300,000 stacked on three vehicles). The insured’s position was that his UIM coverage should equal the amount of his liability coverage because Old Guard did not obtain a new UM/UIM “sign down” form from his when he reduced his liability coverage to $300,000 in June of 2000. The Supreme Court rejected the insured’s position based on the plain language of 75 Pa.C.S.A. 1731 and 75 Pa.C.S.A. 1734. The Court held that these statutory provisions did not require Old Guard to re-comply with the mandates of these provisions regarding reduction in UM/UIM coverage each time an insured changed the amount of his liability coverage under an existing policy. In this regard, the Supreme Court stated:

“[T]he MVFRL does not provide any support for Appellee’s position that the [insureds'] change of liability coverage had an effect on the otherwise valid Section 1734 reduction. Appellee would have us import into our reading of the language of the relevant portions of the MVFRL his argument that the change here is a delivery or issuance of a policy. This Court is without authority to write new requirements into the MVFRL where the statutory language is without ambiguity.”

If you have any questions regarding your auto insurance policy, including the amount of your UM/UIM coverage, call DLP to schedule a free consultation.

John P. Finnerty, Esquire

In a ruling highly favorable to injured plaintiffs, in Sackett v. Nationwide Mutual Ins. Co., PICS Case No. 07-0594 (April 17, 2007), the Pennsylvania Supreme Court held that an insurance company is required to obtain a new executed waiver of stacking from from a named insured every time the named insured adds a vehicle to an existing auto insurance policy.  An insurance company’s failure to obtain a new executed waiver of stacking form signed by a named insured will result in the insured being deemed to have stacked UM/UIM coverage.  The policy will be deemed to provide stacked UM/UIM coverage even though the insured never paid for such coverage because the insured must be given an opportunity to waive stacked coverage. 

If you have been injured in a motor vehicle accident and have a question regarding the amount of UM/UIM coverage on your policy, contact DLP team of Pennsylvania Personal Injury Attorneys for a free consultation.

John P. Finnerty, Esquire