Under Pennsylvania Motor Vehicle Law, the general rules of law concerning negligence apply. In other words if a car crash or collision is caused by the negligence of another person, the injured party can make a claim for damages. However, there are some important explanations to this general negligence rule. First, in the long ago past (before 1974) a person who was claiming he or she was hurt by the negligence or carelessness of anyone, whether a car accident or another type of injury could only make claims if the person making the claim for damages was completely free from fault. This rather harsh doctrine of "Contributory Negligence" would prevent someone who was only a little bit at fault from recovering money from the person or company who was mostly at fault. The Pennsylvania Legislature amended the law and adopted the generally accepted nationwide standard of "Comparative Negligence." In other words, if person bringing a claim for money damages for any type of injury, he or she will not have his or her claims barred because the injury was partially or equally their fault. Under our system the fault of any accident is always equal to 100% which must be apportioned by percentages between two parties or among multiple parties.
Some examples may be helpful. Let's say a driver was stopped at a red light waiting for the traffic light to turn green and the driver being sued (known as the Defendant) was traveling in the same direction and neglected to notice the upcoming red traffic signal and the stopped car of the person bringing the claim (known as the Plaintiff). Let's further suppose the front end of the Defendant's car struck the rear end of the Plaintiff's car. Here, most reasonable Judges, Jurors, or Arbitrators would conclude the Defendant was 100% negligent and the Plaintiff was 0% at fault. If we change the facts the result differs. Instead let's suppose Plaintiff was waiting in his or her car to make a left hand turn at the same intersection and the light which was green turned yellow and the car approaching from the opposite direction was far enough away for the Plaintiff to reasonably conclude that the oncoming driver would have to stop for the light which was changing from yellow to red, then the Plaintiff might reasonably assume he or she could complete his or her turn since he or she was in the intersection.
However, let's suppose the opposing driver instead of stopping accelerated his or her engine to "beat the light" and thus an intersection collision occurred. In this scenario there is considerable facts for a trier of fact (Judge, Jury or Arbitration Panel) to decide the fault different ways. A Judge, Jury or Arbitration Panel could reasonably believe that Plaintiff was 40% at fault and the Defendant who sped up was 60% at fault. Likewise, a jury could conclude that Plaintiff should not have begun his or her turn until there was some evidence that the Defendant's vehicle was slowing down before it began accelerating, and thus find Plaintiff 60% at fault and Defendant 40% at fault. In the first instance where Plaintiff is found to be 50% or less at fault, then Plaintiff can recover against the Defendant. In the second example, because Plaintiff was more at fault than Defendant, there can be no recovery for Plaintiff at all.
When dealing with comparative fault, if the fact finder finds Plaintiff 50% or less at fault he or she can still recover money damages. However, the fact finder is supposed to give a full measure of damages as though there were no issue of fault by the Plaintiff and then the verdict is reduced by the Court (the Judge or Arbitrators) based on the percentage of negligence attributable to the Plaintiff. The Comparative Negligence law is meant to prevent Plaintiff from being paid for his or her damages caused by him or her. From a Plaintiff's perspective these comparative circumstances often result in deep discounts because, whether unconsciously or perhaps consciously, finders of fact are reluctant to award full value for injuries partially caused by Plaintiff. Thus an injury such as a herniated disk which might entitle a Plaintiff a verdict of $100,000 might be reduced by the fact finder to $60,000 because they reason "why should he or she get $60,000 when it was partially his or her fault." Yet the discounted verdict is reduced again by the Judge after the verdict is rendered by applying the percentage of fault to the award. So let's say the jury would have awarded the Plaintiff sitting at the intersection who is rear ended $100,000 for his or her pain and suffering for a herniated disk, but awards the same injury for the left turning Plaintiff the sum of$60,000 since they felt the Plaintiff was less deserving under the circumstances. After the verdict, the Judge will reduce the Plaintiff's award by 40% (the percentage of his or her negligence) so that the molded final verdict/award is reduced to $36,000. If in fact the fact finder exercised adherence to the law as it was intended the reduced amount should have been $60,000.
Therefore it is extremely important to gather as many facts as you can reasonably gather at an accident scene. If you are physically and mentally capable of taking cell phone pictures of important facts and circumstances, do so. Take them of the intersection, the cars involved, their visible damage, the location of the vehicles where they came to rest, any skid marks or damage debris. Many times it is impossible for an injured person to gather such information. If you are injured and able ask an uninjured passenger to gather this information, do so. If you are alone and unable to attend to the gathering information, call a friend and ask for help. Cooperate with the police and give them the incentive to do all they can to gather the evidence. If your version of events is not taken down by the police because you were removed from the scene and taken away by ambulance, insist upon being able to give your version of events as soon as practical to the police. However, if you have had a concussion or you are confused about accident events, you should not try to fill in the gaps by what you think must have happened. Let the experts who may be hired later figure out what happened rather than you guessing what must have happened. Attached to this website is a accident brochure which you can download and print out and keep in your car with a pen jot down the details. (Click below) You can also use your note taking function on your smartphone to memorialize the information.
If your case is a Motor Vehicle case there is another extremely important matter you will need to know. You will need to know whether you are eligible for "FULL TORT" protection or you are deemed to have elected "LIMITED TORT" coverage. This information is on your "DECLARATION PAGE" of your car insurance policy. It was selected at the time you first purchased car insurance for a vehicle which you own or a family member selected it for you. This is a required election on whether you want to purchase "FULL TORT" protection or "LIMITED TORT" protection. This election will follow the policy no matter how long it lasts, unless it is deemed changed by a new election or by operation of law.
Under the law a buyer of car insurance who elects "LIMITED TORT" is required to be given a discount on pricing of the policy by at least 15% of the cost. Therefore, there is a great temptation to save money by taking the less expensive option. DO NOT DO THIS!
It is a false economy, no matter what your insurance agent or car insurer says. if you elect "LIMITED TORT" you are giving up your rights and perhaps the rights of your family members in your household to sue for NON-ECONOMIC losses such as pain and suffering, loss of enjoyment of life's pleasures and most remedies available to a "FULL TORT" insured. Sure, you can still recover excess wage loss or unpaid medical bills and economic losses as a "LIMITED TORT" insured, but you cannot make a claim for the diminished quality of your life, unless you cross over some artificial and universally contested "verbal threshold" of having a "serious impairment of a bodily function."
If you are reading this and you have already been injured by another motorist and you have "Limited Tort" elected on your policy, there are some exceptions which may apply. These exceptions may be legal exceptions, such as being injured by an intoxicated driver, or being injured by a vehicle registered in another state. There are some factual reasons why LIMITED TORT may not apply, such as not having signed a proper election to have limited tort. You might be able to show that you never signed an election at all, or the waiver form was not the one required by law.
Finally, you may in fact have a "serious impairment of a bodily function" and satisfy the verbal threshold which once crossed allows such claims. If this factual reason exists, the case for a claim for non-economic injuries such as pain and suffering and the other available claims which the law allows a FULL TORT insured will be available to you. However, this determination as to whether your injury is a serious enough injury is for the trier of fact, usually a jury.
The statutory requirement for financial responsibility in owning or operating automobiles requires all vehicles to have liability insurance on a vehicle registered to drive on the road. Thus if you own or operate a car it must legally have car insurance. In addition each car insurance policy must provide a minimum of $5,000 in medical insurance coverage for payment of medical bills. There is a presumption of wage loss coverage which the owner of the car can waive which requires, unless waived, the vehicle to provide to its insured at least $1,000 per month of wage loss protection for up to a maximum of $5,000. These shockingly low limits of mandatory coverage first adopted in the 1970s are still in place with the legislature not having the will to raise these mandatory minimum limits. However, as a purchaser of car insurance for yourself or your family, just as in the election of a Tort Option, you can elect, and may have elected on your policy for a greater level of protection beyond the minimums available.
For example, a higher wage earner could opt for a $50,000 maximum policy wage loss limit with a maximum amount payable of $2,500 per month. There is even a combined loss policy which has significantly higher amounts available for wage losses, but which has a limited time frame in which to make such claims and is usually not a good idea. You should discuss your situation with a knowledgeable injury lawyer at MURPHY & DENGLER, even if you have already been in an accident, to protect you or a family member covered by the car insurance policy in the future.
There are multiple options for higher medical coverage under first party benefits. You as an insured can do just fine with the minimum coverage, provided you have a good health insurance plan with low deductibles and co-pays. However, the high deductible plan means there may be a substantial amount of money out of pocket until your case against the negligent driver gets settled. Then there is the problem of your health insurer wanting the money it spent to help you recover from a car accident paid back by the insurer for the driver who caused the injury. This is called subrogation. This doctrine which is asserted by some health insurer might not be a problem if the negligent driver has a substantial amount of liability insurance so there is no issue with enough money to pay all the losses incurred. But let's assume you are struck by someone who has a minimum liability policy of $15,000. (Another legislative disgrace, the minimum amount required to cover at fault accidents has also not been raised since the 1970s. Thus a $15,000 recovery when the law was made 40 years ago is in today's dollars equal to less than $3,000 in today's dollars.).
If the offending driver who is being sued has only $15,000 and your medical insurer spent $25,000 to pay for your helicopter ride to a trauma center and emergency surgery, and it is allowed under a Federal Law (ERISA) to recoup its money by subrogation, there may be little or no recovery for you, except a worthless judgment amount over the amount the insurer pays against a deadbeat driver from whom you will never get any other money.
Therefore, it is always our recommendation to get as much First Party Medical Benefits as you can afford so as to have your own car insurer pay the bills. The payment of these medical bills and wage loss expenses is on a "no-fault" basis. In other words, even if the injury is your fault or might be argued as your fault, the bills are still paid by your car insurer up to the limits you selected, AND, this type of payor of medical bills cannot get the money it paid for medical or wages back from the settlement or verdict funds recovered from the negligent party or his or her insurance carrier. In other words unlike an ERISA Health Insurer it has no right of subrogation.
The greatest car accident protection you can provide for yourself and your family is the purchase of insurance coverage in case the other negligent driver has no insurance (this is mandatory) or if the other driver has the more common problem of having too little insurance to cover your damages. This type of insurance, called under insured coverage is not mandatory and can be waived with proper documentation signed by you.
We, at MURPHY & DENGLER, never recommend such a waiver.
By buying coverage in the same amount you purchase to protect yourself and your family from claims of your own neglect you are responsibly protecting you and your family from the uninsured or underinsured negligent driver. Sometimes this is the only source of a real recovery. Our firm has handled hundreds of cases where the other negligent driver had a minimum policy of$15,000 and the Plaintiff's damages were valued at well in excess of $100,000. If our clients were forward thinking enough to have the UM/UIM coverage they needed, we are more likely obtain a more just recovery.
Without sufficient coverage there is much heartache to be added to the physical injury already suffered.
There are different statutory schemes for UM/UIM coverage than wage loss and medical coverages, even though these coverages are sometimes called First Party Benefits. These coverages follows the vehicle you are in at the time of the injury and not necessarily following the car you own or insure. Wage Loss and Medical First Party Benefits follow the policy owned by you or which covers you by operation of the contract or by law. So if you are in a collision and injured in a friend's vehicle, it is your automobile insurance policy which pays for your medical bills and wage loss. However, the friend's vehicle that you were a passenger in is the source of the first level of UM or UIM coverage.
If you were in a friend's car or an employer's car and injured by the negligence of another vehicle, the UM/UIM carrier for the car you are in is the first level of insurance for this coverage. Your personal vehicle coverage kicks in and covers you in the event you have injuries greater in value than the first level of UM/UIM coverage.
Then there is the complex issue of stacking insurance coverage. You can protect yourself and your family with even greater coverage by stacking each vehicle on the policy and its UM/UIM coverage on each vehicle. Thus 3 cars with UM/UIM coverage of$300,000 with stacking gives a named insured an effective UM/UIM coverage of $900,000 in case of a debilitating, permanent injury. (3 cars x $300,000 = $900,000) Policies are deemed stacked unless you waive stacking in writing. Therefore, gathering your policies and having them reviewed from time to time makes sense. However, it is of vital importance to discuss your purchased coverages after an injury and to find out who insured the vehicle you were in at the time of injury to make sure your rights are protected. It is important to see an experienced auto accident attorney to discuss your rights and to make sure you notify the appropriate carriers in a timely fashion.
Frank P. Murphy, Esquire