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LIMITED TORT UPDATE: FOUR (4) LESSONS OF WASHINGTON V. BAXTER

The greatest ally of any limited tort plaintiff, and any limited tort lawyer, is the jury. In other words, those same twelve (12) strangers are the greatest threat to the insurance companies. The jury is the only authority that can actually force the carriers to pay your client the monetary damages she deserves. This is why the defense bar does everything in its power to keep your limited tort clients out of the Courtroom. Fortunately, for us plaintiff’s lawyers, the law is in our favor. In 1998, less than a decade after the legislature established the limited tort statute, the Supreme Court’s precedential decision in Washington v. Baxter gave us the four (4) essential principles on which our clients are assured their days in Court.

1. THERE IS NO BLACK LETTER LEGAL DEFINITION OF “SERIOUS IMPAIRMENT”
The Washington Court found that neither the Pennsylvania legislature, nor the terms of the statute itself, offers any definition of, or assistance in, defining “serious impairment of a body function.” Relying on the fact that our limited tort statute is modeled nearly verbatim after Michigan’s tort threshold law, the Court expressly adopted Michigan’s DiFranco v. Pickard criteria for testing “serious impairment.” The DiFranco Court set out seven (7) guidelines to determine whether a “serious impairment of a body function” occurred. Most notably, the guidelines specifically maintain that, in order to be “serious” an injury need not be catastrophic or permanent, nor does it need to affect the entire body function of an important body function, seemingly creating a much lower standard than the insurance companies would desire.
Simply put, instead of a black letter legal definition, the Washington and DiFranco Courts set out a two-pronged subjective test for determining serious impairment: “a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident? And b) Was the impairment of body function serious?” To resolve these inquiries, a jury would need to review not simply the objectively identifiable injury, but the affect the injury has on the plaintiff’s bodily function(s) and the plaintiff’s lifestyle as a whole. There is no black-and-white, yes-and-no, when it comes to limited tort. What may be “serious” to one plaintiff may not be to another. And even more importantly, what may be “serious” to one juror, may not be serious to another juror.

2. AN INJURY NEED NOT BE PERMANENT TO BE “SERIOUS”
Of the seven (7) guidelines adopted from the DiFranco decision, the Washington Court strongly emphasized one in particular: an injury need NOT be permanent to be considered “serious.” Echoing the Superior Court’s decision in Dodson v. Elvey, the Court held that in defining “serious injury,” permanence is not required, and that the Plaintiff’s subjective complaints of pain may result in a serious impairment of body function. This is not a new concept. Long before the Washington decision, the Pennsylvania Standard Civil Jury charge regarding non-economic loss effectively mirrors the permanency guideline of DiFranco, Dodson and Washington. The instruction expressly states that in determining “serious impairment”, a jury must keep in mind, among other things that “an impairment need not be permanent to be serious.” It has been well-established in Pennsylvania that “serious” and “permanent” injuries can be mutually exclusive.

3. AN OBJECTIVELY IDENTIFIABLE INJURY IS NOT REQUIRED TO PIERCE LIMITED TORT
Two (2) years before Washington, the Superior Court “recognized that a soft tissue injury can constitute a ‘serious injury’ where it is objectively manifested and substantially impairs a bodily function.” (Chanhtavong v. Tran). This ruling did away with a defense argument that a soft tissue injury case cannot be a “serious” injury, and set the stage for Washington to strike down the same. In referencing, and adopting much of the Dodson and Chanhtavong opinions, the Supreme Court rejected any requirement of an objectively identifiable injury to pierce the limited tort threshold. In fact, it expressly ruled that the Plaintiff’s subjective complaints of pain may result in a serious impairment of body function and the jury’s analysis of the plaintiff’s impairment must be a subjective one.

4. THE “SERIOUS IMPAIRMENT” QUESTION IS ALMOST ALWAYS FOR THE JURY
The Washington Court made clear that the trier of fact – the jury – must be charged with determining whether the plaintiff has sustained a “serious impairment of a body function. On the heels of that ruling, limited tort clients have consistently been given their rightful days in Court. In Cadena v. Latch, the Superior Court reaffirmed Washington when it held that “whether a plaintiff suffers a serious injury ‘should be made by the jury in all but the clearest of cases.’” Given the totality of Plaintiffs loss of daily life pleasures, the Court determined that “reasonable minds could differ as to whether a serious injury had been sustained,” reiterating Washington’s high threshold for summary judgment on limited tort.

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