You find yourself the victim of a car accident. While it is unfortunate, and oftentimes very scary, auto accidents are all too common and even more so during the winter months when the risk factors are on the rise. Ice storms, snow, wet roads and limited visibility are to only name a few. You have limited tort coverage.
So, you are driving along, it’s the morning following a rather wet and brutally cold evening, you are being your overly cautious self, then, out of nowhere, the driver in the car coming in the opposite direction slams on his breaks, skids on black ice and crashes into your car. Thankfully, you were alert and experienced enough to swerve a bit, avoiding what would have been a head on collision. For the most part you feel okay and when the responding officer arrives, you give your statement and exchange information with the other driver.
Fast forward a few months and that aching pain in your back just won’t go away. And then there’s the numbness in your arm – you’ve seen your doctor about it and you’ve been following religiously with weekly therapy but it’s just not getting better. Indeed, it seems what you are feeling may never go away, the fear of a permanent injury from your auto accident becoming a real concern.
In Pennsylvania, a personal injury plaintiff with limited tort coverage typically cannot recover noneconomic damages unless he/she suffers a “serious injury”. While there are a handful of other exceptions, for the most part the “serious injury” threshold is the one courts and parties alike find themselves grappling with most often.
What qualifies as a “serous injury” can be battled out by the parties’ experts, what happens when the seriousness of the injury isn’t realized until some time relatively distant from the date of the original injury. Typically, the two-year statute of limitations in a personal injury action starts to run on the date of injury. So what happens if the seriousness of your injury isn’t discovered until after the two years has expired. This very question was recently revisited in Varner-Mort v. Kapfhammer where the Pennsylvania Superior Court reversed and remanded back to the lower court holding plaintiff’s claims should not have been dismissed as untimely at the summary judgment stage applying the holding from the 1997 case, Walls v. Scheckler. Walls held that the statute of limitations for a limited tort plaintiff in a personal injury matter begins to run at the time the plaintiff’s injury is determined “serious” rather than from the date of the accident. While the Court’s majority appeared at odds with the ultimate holding, it reluctantly applied precedent, reversed and remanded, opening perhaps the door to an issue ripe for review.
So, as a practitioner, before you turn away a limited tort client injured in an auto accident on the grounds that the claim may be stale, take a look closer at the medical records and talk to the treating physicians. As a party with limited tort coverage injured in a car accident, don’t give up hope, contact an experienced auto accident attorney for a free consultation, you may still have options available getting you the compensation you deserve.
To read more about the Varner-Mort v. Kapfhammer case, go to www.courthousenews.com/home/OpenAppellateOpinion.aspx?OpinionStatusID=130689; www.law.justia.com/cases/Pennsylvania/superior-court/2015/261-wda-2014-0.html (concurring opinion).