Pedestrians who are hit by cars, trucks or buses in Philadelphia are often confused about who pays for their medical expenses and what they need to do. We received the following question about a Philadelphia car-pedestrian accident:
"I was crossing the street in Philadelphia and was hit by a car. Does it matter what kind of car insurance I have to sue the driver for my injuries?"
We answered this question based on the assumption that the injured pedestrian’s reference to "kind of car insurance" meant limited tort or full tort.
PA car accident law provides that if an insured driver elects full tort on his car insurance policy, he has the right to seek financial compensation for the following:
1. all economic damages in excess of required first-party benefits, such as out of pocket medical expenses; and
2. all non-economic damages, such as pain and suffering.
However, if the insured driver elects limited tort, he waives his rights and the rights to recover non-economic damages (pain and suffering), unless the injury sustained in the accident is "serious."
The limited tort principle does not apply to pedestrians. It is well settled by Pennsylvania case law that a pedestrian’s right to non-economic recovery is not restricted by his election of limited tort on his car insurance policy. The tort option only applies when a person is occupying a motor vehicle when injured.
In L.S. v. Eschbach, a binding PA Supreme Court case, a seventh grader was hit by a car when she attempted to cross a street. She sustained multiple contusions, abrasions and fractures throughout her body. The minor’s mother sued the negligent PA driver on her behalf for the injuries and damages she sustained. The minor was considered an “insured” under her mother’s auto insurance policy because she lived with her mother.
The driver argued that the minor was bound by her mother’s election of limited tort and not allowed to sue for pain and suffering because her injuries were not “serious.”
The PA Supreme Court held that the minor pedestrian should not be restricted by her mother’s election of the limited tort alternative because her injuries did not result from the use of a motor vehicle, either as an operator or an occupant. A pedestrian’s election of limited tort or full tort on his auto insurance policy has no effect on his legal right to sue the at-fault driver for pain and suffering damages.
Because you were a pedestrian hit by a car in Philadelphia, you can sue the driver for your injuries regardless of what kind of tort option you have.
If you have more questions about your accident, feel free to contact me at 877.944.8396. We ALWAYS offer FREE consultations.