Friday, January 11, 2013

Serious Impairment of a Body Function – What is it?

Many people in the Commonwealth of Pennsylvania have selected the limited tort option on their automobile insurance policies.   However, I wonder if those people actually know what that means.  What is comes down to is simple and can be put into a simple statement.   In exchange for paying a lower premium on their auto insurance, the person who selects the “limited tort” option gives up the right to sue for pain and suffering and non-economic damages unless they have a serious impairment of a body function.   

If it sounds complicated or confusing, it is.    So where does that leave the analysis? 

If you are subject to limited tort, you need to know what constitutes a “serious impairment of a body function.”  This is where it gets tricky.   Here is some guidance.
Courts in the Commonwealth of Pennsylvania have defined this concept.
In Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998), the Pennsylvania Supreme Court adopted the following definition of “serious impairment of body function:”

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 court adopted the definition set forth in DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896, 901 (1986), since the Pennsylvania legislature had relied upon Michigan law as a model when the limited tort option was created.  Washington, 719 A.2d at 740.  Quoting DiFranco, 398 N.W.2d at 901, the court also stated further that:

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.

What does this mean to you, the injured party who is subject to limited tort?  It means that you need to be in the hands of a good attorney who can properly work up the damages aspect of your case with this definition in mind.    
If you are injured in an accident or know someone who is and that person is bound by the limited tort option, I would be glad to discuss this with them.   

In my next blog, I will share some examples of cases that overcome limited tort and some exceptions to limited tort.  

Feel free to call or email me with any questions.   I can be reached at or 267-350-6638.  I would love to help.


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