Which Tort Option Applies?

In his recent decision in the case of Edgington v. Abersold, PICS Case No. 14-1630 (C.P. Lawrence Co. Sept. 24, 2014 Piccione, J.), Judge Thomas M. Piccione addressed the issue of determining a Plaintiff’s tort coverage where more than one private passenger motor vehicle accident policy was applicable and the policies had conflicting tort options.  

In his decision, Judge Piccione applied the provisions of the Motor Vehicle Financial Responsibility Law that provide "where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.”   See 75 Pa.C.S.A. Section 1705(b)(2).

According to the Opinion, the injured Plaintiff in this case did not have a driver’s license and did not own a vehicle.   The Plaintiff was an insured under a limited tort policy purchased by her husband. 

However, at the time of the accident, the injured party Plaintiff was riding in her mother’s vehicle as a passenger.  The Plaintiff's mother had a full tort policy on that vehicle.  

Judge Piccione applied the facts to the above stated provision of the Motor Vehicle Financial Responsibility Law and held that a passenger with no driver’s license and who did not own a vehicle is bound under the insurance coverage and tort option selected by a spouse unless, as here, the passenger was riding in a car of a different owner with different coverage.

Since the injured party Plaintiff was found to be an insured under her mother’s full tort insurance policy, the Plaintiff was deemed capable of seeking recovery for both economic and non-economic damages as a full tort Plaintiff.  

 

I do not have a copy of this decision.  However, a copy can be secured from the Instant Case Service of The Pennsylvania Law Weekly by calling 1-800-276-7487 to order a copy of the case for a small fee.  

 

Below is a Limited Tort Primer I created once when faced with the issue of which Tort Option would apply in different scenarios--rather than having to go look it up every time, I like to keep this list handy for easy reference.  Hope it helps to kickstart your research whenever you are faced with the same issue:

A.        WHO IS COVERED BY LIMITED TORT

The issue of who is covered by the limited tort election is governed by an application of 75 Pa.C.S. §1705(b)(2), which provides, as follows:

 

(2)  The tort option elected by the named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy.  In the case where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.

 

The Pennsylvania Supreme Court has stated that “[t]he formula [for determining who is a limited tort plaintiff] is clear—where there is only one insurance policy, sentence one [of §1705(b)(2) above] applies;  where there is more than one policy with conflicting tort options, sentence two determines the applicable coverage.”  Hoffman v. Troncelliti, 839 A.2d 1013 (Pa. 2003).

 

POTENTIAL LIMITED TORT SCENARIOS

 

-Named insured is bound by limited tort selection in own insured vehicle at time of accident

 

-Named insured’s selection of limited tort under policy shall also apply to all other insureds under that policy who are not named insureds under their own separate insurance policy.  75 Pa.C.S. §1705(b)(2).

 

-If there is more than one policy covering an insured, and the policies have conflicting tort option, the insured will be bound by the tort option selected in the policy covering the vehicle the insured was an occupant of when involved in the accident if the insured is covered under that policy.  Carns v. Smith, 118 Dauph. Co. Rpts. 417 (1998).

 

-Where injured party is an “insured” under a full tort policy covering the vehicle she is occupying at the time of the accident, but is a “named insured” under a limited tort policy, the Pennsylvania Supreme Court has held that the second sentence of 75 Pa.C.S. §1705(b)(2) applies, which entitles the injured party to full tort coverage because at the time of the accident she was the occupant of a vehicle that had full tort coverage and she was also an insured under that policy (she was a resident relative).  Hoffman v. Troncelliti, 839 A.2d 1013 (Pa. 2003).

 

-Where the injured party selected limited tort coverage as a named insured under her own policy but is injured while riding as a passenger in a vehicle covered by a full tort policy, but the injured party does not qualify as an “insured” under that full tort policy, then there are no conflicting tort options and the passenger is bound by her limited tort election.  Perry v. Leader Ins. Co., 54 Northampton Co. Rpt. 465 (2005).

 

-Where the injured party has selected the full tort option on his own policy but is a passenger/insured in a vehicle covered by a limited tort policy, one court has found the injured party in this scenario to be covered by the limited tort option.  Clikeman v. Bahrenburg, No. 1124 EDA 2005 (Pa.Super. 11/22/05)(mem. op.)

 

-A person who is not the owner of a registered motor vehicle and who is not a named insured or insured under any automobile insurance policy is considered a full tort plaintiff.  75 Pa.C.S. §1705(b)(3)

 

-A person who owns a registered but uninsured motor vehicle shall be deemed to have selected the limited tort option .  75 Pa.C.S. §1705(a)(5);  However, the children of a person who has a registered but uninsured motor vehicle will not be punished with a deemed limited tort status—they are considered to be full tort.  Holland v. Marcy, 883 A.2d 449 (Pa. 2005).

 

-A pedestrian who is covered by the limited tort option will not be bound by that election when hit by a car.  L.S. v. David Eschbach, Jr., Inc., 874 A.2d 1150 (Pa. 2005).