Philadelphia Injury Lawyer Blog

In a new case the Superior Court of Pennsylvania upheld the Philadelphia trial court in finding that a Philadelphia man injured in an automobile accident was entitled to “full tort” and not “limited tort” even if he owned an uninsured vehicle. Two types of insurance coverage can be purchased in Pennsylvania, which are known as "limited tort option" and "full tort option." Under Pennsylvania law, those who select the limited tort option may not bring suit for non-economic damages or "pain and suffering," unless they have suffered a "serious injury."

In Progressive Halcyon Ins. Co. v. Kennedy, 908 A.2d 911 (Pa. Super. 2006) the Court ruled that Anthony Kennedy was entitled to bring an uninsured claim against his automobile insurance company and was entitled to "full tort" or recovery of pain and suffering. Mr. Kennedy was involved in a car accident when an unknown vehicle swerved into his lane. Because he did not know the identity of the other automobile, he brought an uninsured motorist claim against his own insurance policy. Mr. Kennedy owned three automobiles, a 1997 Ford, 1989 Toyota, and a 1986 Nissan. He had automobile insurance on the Ford and Toyota automobiles, and he had selected the full tort option as provided under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). However, he did not insure his 1986 Nissan. Mr. Kennedy was involved in a car accident while driving the Ford. He suffered injuries and made a claim for benefits to his automobile insurance company. When they would not pay on his claim for his injuries, he hired a Philadelphia lawyer.

The automobile insurance company argued that Mr. Kennedy was subject to limited tort (not able to recover pain and suffering) because one of the automobiles he owned was not insured. The Philadelphia trial court disagreed and stated that Mr. Kennedy was entitled to “full tort” in his claim. The Pennsylvania Superior Court has now just affirmed the Philadelphia Court of Common Pleas, explaining that because Mr. Kennedy was injured in the car that was insured and for which he had chosen full tort, the insurance company was bound by his selection of full tort. Thus, Mr. Kennedy was permitted to recover pain and suffering damages. In this writer’s view, this only makes sense as Mr. Kennedy bought insurance for the car that was involved in the accident and chose “full tort.” However, this case shows how insurance companies will try to find any loophole in a policy to deny claims. Also, this case illustrates the importance of checking your auto policy to make sure you have chosen "full tort" and uninsurance coverage.

A few years ago I received a call from an employee who while working in Philadelphia was injured severely at work, but the employer did not carry workers' compensation insurance. Because the employer had no assets, I unfortunately had to inform this injured employee that he may never recover. There may now be help for those injured in Philadelphia or anywhere in Pennsylvania while at work even if their employer does not carry workers' compensation insurance because of a recent change in the Pennsylvania Workers' Compensation Act.

On November 9, 2006, Governor Rendell signed into law Act 147, formerly House Bill 2738. The amendments to the workers’ compensation Act include:

1) A “resolution hearing” procedure to speed up processing of compromise and release agreements;

2) A “mandatory trial schedule” to be established at the first hearing by a workers’ compensation judge, including mandatory mediation unless that would be “futile”;

3) Added to Section 414 of the Act a provision stating: “when assigning petitions…, the department shall not assign to a particular workers’ compensation judge more than seventy-five per centum of the petitions from a particular county”;

4) An Uninsured Employers Guaranty Fund.

From this writer’s perspective, the largest impact of the law will be the addition of the Uninsured Guaranty Fund. The Pennsylvania Workers’ Compensation Act covers all injuries to employees at work. It is a no-fault system, with the injured employee only having to prove that he was injured while working (in the course of employment) and is disabled (cannot work). In Pennsylvania, all employers are required to carry workers’ compensation insurance. However, some do not in violation of the Pennsylvania Workers’ Compensation Act. Many employees who worked for small businesses could never collect if the employer did not carry workers’ compensation insurance. Under the new law, a fund is created for an injured worker to collect even if the employer has no insurance. This fund is called the “Guaranty Fund” which was created under Act 147 of 2006. Finally, employees who have worked for irresponsible employers that never carried insurance have a remedy!