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March 12, 2013

BY: Marc Simon, Esquire for

The Supreme Court in Washington v. Baxter, Jr., supra, specifically adopted the Michigan standard for determining a serious injury under the limited tort law as set forth above. The Pennsylvania Supreme Court in interpreting 75 Pa.C.S.A. § 1705, the limited tort statute, recognized that as in any statutory interpretation, the Court should examine the specific language of the statute in question. However, when an ambiguity exists in the terms set forth in the statute, (such as the ambiguity of Pennsylvania’s definition of “serious injury”), the Court held that it should then determine the Legislative intent behind the statute. The Court in Washington held that the legislative intent behind the Pennsylvania Motor Vehicle Financial Responsibility Law, as stated above, indicates a reliance on and understanding of Michigan Law. In the landmark case of DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2nd 899 (1986), the Michigan Supreme Court rethought and reworked the Michigan motor vehicle law providing plaintiffs subject to the tort threshold a greater ability to recover non-economic damages.

The DiFranco Court established the following guidelines:

1) The Legislature did not intend to limit recovery of non-economic damages to the catastrophically injured. The “serious impairment of body function” threshold is a significant, but not extraordinarily high, obstacle to recovering such damages.

2) The impairment need not be of the entire body function or of an important body function. Section 3135(1) bars recovery of non-economic damages to those persons who suffered minor injuries, or injuries which did not seriously impair the ability of the body, in whole or in part, to function.

3) The “general ability to live a normal life” test will no longer be used to determine whether the plaintiff suffered a serious impairment of body function.

4) The “serious impairment of body function” threshold set forth in the limited tort law 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 body function serious so as to breach the limited tort threshold?

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.

5) In determining whether the impairment was serious so as to breach limited tort, several factors should be considered: the extent of the impairment, the particular body function impaired, 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.

6) When the threshold question concerning limited tort is submitted to the jury, it should be instructed as to the two-fold nature of the “serious impairment of body function: threshold, and the factors to be considered in determining seriousness.

7)  Section 3135 (1) and Cassidy require the plaintiff to prove that his non-economic losses arose out of a medically identifiable injury which seriously impaired a body function.  The interpretation of Cassidy’s “objectively manifested injury” requirement adopted in Williams v. Payne, 131 Mich. App. 403, 346 N.W. 2d 564 (1984), is rejected…(emphasis added). 



FEBRUARY 28, 2013

BY: Marc Simon, Esquire for


            On February 6, 2006 Mary Corbin was traveling south on Rt. 413 in Bristol, Pennsylvania.  At the same time, Suresh Khosla was driving north on Rt. 413.  Mr. Suresh proceeded to turn left in front of Ms. Corbin and caused an accident.  At the time, Ms. Corbin was the owner and driver of an uninsured vehicle.

            Ms. Corbin filed suit in the United States District Court for the Eastern District of Pennsylvania.  Defendant then filed a motion to partial summary judgment seeking dismissal of Plaintiff’s claims for economic damages under Section 1714 of the MVFRL.  Defendant also sought a declaration stating that Plaintiff was precluded from receiving non-economic damages because she was subject to the limited tort option under Section 1705(a)(5).  The District Court ruled that Defendant was precluded from recovering non-economic damages and further stated that the Pennsylvania Supreme Court would allow a plaintiff to recover economic damages from an alleged third-party tortfeasor, but would be prohibited from recovering such damages from an insurance company.  An appeal to the Third Circuit Court of Appeals was filed, and that court petitioned the Pennsylvania Supreme Court to determine the following question of law: Does Section 1714 of the MVFRL preclude an uninsured motorist from recovering tort damages for economic losses from an alleged third-part tortfeasor?


            The court first established the controlling statutory law in this matter.  Section 1714 states, “An owner of a currently registered motor vehicle who does not have financial responsibility…cannot recover first party benefits.”  Additionally, Section 1705(a)(5) provides that “An owner of a currently registered private passenger motor vehicle who does not have financial responsibility shall be deemed  to have chosen the limited tort alternative.” 

            Next, the court reviewed relevant case law, including Swords v. Harleysville Ins. Companies (883 A.2d 562 (Pa. 2005)) and McClung v. Breneman (700 A.2d 495 (Pa. 1997)).   In Swords, the court determined that the MVFRL does not allow owners of uninsured vehicles to rely on the financial responsibility of others to get around the preclusion in Section 1714.  The court further stated such owners can sue in tort and recover damages for economic loss.  In McClung, the court held that uninsured motorists were precluded from recovering medical expenses from either first party insurers or third party tortfeasor.  The McClung court collapsed the distinction between first party benefits and third party coverage, stating that allowing uninsured motorists to recover from third party tortfeasors where they were unable to do so from first party insurers would lead to an absurd result that was contrary to the purpose of the MVFRL.

            The Court then determined that first party coverage and third party coverage are distinct and, in light of this distinction, owners of uninsured vehicles may seek recovery from third party tortfeasors for economic loss based on the language of Section 1714.  The Court stated that a straightforward reading of Section 1714 the Pennsylvania General Assembly sought to penalize owners of uninsured vehicles by precluding them from seeking non-economic damages and precluding them from participating in the first party benefit system.  Section 1714 forces the uninsured motorist to sue the third-party tortfeasor and navigate the judicial system to recover any payment for economic damages from the tortfeasor’s insurance company. 

            In a concurring opinion, Justice Saylor stated that while this decision may put a third-party tortfeasor in a worse position by allowing an uninsured motorist to recover the full amount of her damages, the plain language of the statute requires the court rule in this manner.



FEBRUARY 18, 2013 

BY: Marc Simon, Esquire for

            Although drafted long before the Supreme Court’s decision in Washington v. Baxter, the seminal case in the limited tort arena, the Pennsylvania Standard Civil Jury charge regarding non-economic loss effectively mirrors the standard set forth above in Washington.  The Pennsylvania Model Jury Charge 602D, regarding “Auto Negligence: Serious Impairment” provides in relevant part that:

Under Pennsylvania law, the plaintiff may recover non-economic loss damages in this case if the plaintiff can show by the greater weight of the evidence the Plaintiff suffered serious impairment of body function.  To decide this, one must decide, based upon the evidence:

(1)       Whether the injuries sustained by the plaintiff in the accident impaired one or more body functions; and

(2)       Whether that impairment of a body function was serious.

In determining whether the impairment of a body function was serious, you should consider such factors the extent of the impairment, the particular body function impaired, 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.

The terms “serious,” “impairment,” and “body function” have no special or technical meaning in the law and should be considered by you in the ordinary sense of their common usage..

            In a Superior Court decision which is pre-Washington, yet is nonetheless helpful

in determining what constitutes a “serious injury” in a limited tort case, the Court in Leonelli v. McMullen, 700 A.2d. 525 (Pa. Super. 1997), reversed a trial court’s Order for Summary Judgment based on the limited tort threshold.  The trial court granted summary judgment on limited tort based upon the following reasons: (1) Plaintiff went back to work after the accident; (2) Plaintiff’s self-imposed limitations were not doctor ordered; and (3) Plaintiff did not immediately seek treatment from a physician after her accident.  In reversing that decision on limited tort grounds, the Superior Court addressed each abovementioned issue as follows:

1.  While an individual’s ability to work may be a factor in determining the severity of a Plaintiff’s injuries, the fact that an individual is able to return to employment after a motor vehicle accident cannot be conclusive as to whether Plaintiff suffered serious injuries.

2.  Plaintiff’s reluctance to seek additional medical treatment after she was evaluated and released from the emergency room could have been attributed to her limited financial resources.  Therefore, the fact that there was a seven week lapse in treatment cannot be conclusive evidence that her injuries were not serious.

3. the trial court committed an error by finding as a matter of law that Plaintiff’s subjective complaints and self-imposed restrictions were not sufficient evidence to show that Plaintiff had suffered a serious impairment of body function.  There was sufficient evidence offered by the Plaintiff from which a finder of fact could determine that the injuries substantially impaired the Plaintiff’s life.

              The Court in Leonelli found that the Plaintiff’s subjective complaints of pain did, as a matter of law, result in a serious impairment of body function.

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