The Application of Your Tort Election to Pedestrians, Motorcycles and/or Bicycles
In Pennsylvania, there is a required tort election between “limited tort” and “full tort” for your motor vehicle insurance. Your choice and its application impacts what you may recover in damages resulting from an accident. The “limited tort” election is the least expensive between the two. However, there is an important difference between the two as to what damages you can recover, so the election should be well considered. The “full tort” allows one to recover all economic and non-economic damages. On the other hand, “limited tort” limits the damages you can recover to only economic damages, unless a “serious injury” is suffered or one of a number of exceptions apply. In particular, a "serious injury" is defined as "death, significant deformity or impairment of body function." Further, different “vehicle” owners do not realize who their decision will impact or if it will apply to their type of “vehicle.” This article deals with whether the tort application applies to motorcycles/bicycles or not.
In Pennsylvania any “named insured” may make the tort option election, binding the policy holder and all other “insureds” under the policy. 75 PA C.S.A. § 1705(a) (2), (f) (2013). The Motor Vehicle Financial Responsibility Law (MVFRL) states that under a Full Tort policy, each person on the policy remains eligible to seek compensation for “noneconomic loss claimed and economic loss sustained in a motor vehicle accident as the consequence of the fault of another person.” Id. at (c). A party who has elected to limited tort option is still eligible to seek economic losses sustained but my not seek any compensation for noneconomic damages. Id. at (d). Despite the prohibition, the statute outlines several exceptions which would allow a party electing limited tort to still maintain an action for noneconomic loss including “[I]f injured while an occupant of a motor vehicle other than a private passenger vehicle.” Id. at (d) (3).
The statute defines a “private passenger motor vehicle” as a four-wheel motor vehicle
insured by a natural person which “has a gross weight not exceeding 9,000 pounds and is not principally used for commercial purposes other than farming.” 75 PA C.S.A. § 1702 (2013). This definition leads invariably to the question of how to apply the law to those vehicles which are passenger oriented but have fewer than 4 wheels. There is a lack of case law directly on this point, but other case law suggests that in the case of a statutory interpretation the courts would find in favor of a full-tort application for those not included in the statute such as pedestrians, bicyclists, and motorcyclists. L.S. ex rel. A.S. Eschbach, 874 A.2d 1150 (Pa. Sup. Ct. 2005).
the court was dealing with a matter of first impression as to whether the limited tort provision of the MVFRL restricting recovery of individuals who have limited tort insurance coverage does not apply to pedestrians. The minor plaintiff was exiting a school bus when she was struck by a vehicle leading to several personal physical injuries. Id.
at 1151. The plaintiff’s mother had elected the limited tort option on her vehicle insurance policy. The court in conducting a statutory interpretation applied principles from the Pennsylvania Code. 1 Pa. CONS. STAT. § 1921 (2013). In application to the facts of the case the court noted the complete absence from the statutory language of the section any mention of pedestrians. Id.
at 1155. Based upon the statutory construction principle of expression unius exclusio alterius
(the express mention of one meaning in a statute implies the exclusion of other meanings) the Court concluded that to incorporate pedestrians into the language of the MVFRL would be to judicially expand Section 1705. Further, in light of the purpose of the statute the Court state that “Because Section 1705 is silent with regard to pedestrians, it would be inappropriate for this Court to link the recovery rights of an innocent pedestrian with a system designed to reduce the increasing cost of motor vehicle insurance.” Id
. at 1156.
In order to make up for the lack of case law a similar statutory interpretation would be necessary in the event of an action for a motorcycle or bicycle. Where the relevant section of the statute on the limited tort option states that an exception exists for those who are occupants of “A four-wheel motor vehicle
, except recreational vehicles not intended for highway use, which is insured by a natural person” [Emphasis Added] it must similarly be looked at through statutory construction principles. Applying the same tool of expression unius exclusio alterius,
a similar conclusion as in Esbach can be reached. If the legislature intended for motorcycles to be included under the definition following an express term of “four-wheeled vehicle” then it would have done so explicitly. Further in efforts to reduce the cost of auto insurance, the inclusion of bicycles is clearly not effectuated by inclusion of their participation in the tort option. For motorcycles this presumption is not as clear cut, but their non-inclusion would reduce premiums overall thus effectuating the statutory purpose.
Though there is a lack of direct case law on the subject, the Supreme Court has found that those occupants of vehicles falling outside of the definitions of § 1702 would not have a limit-tort option under § 1705. Pedestrians, bicycles, and motorcycles could still be the non-fault party in an auto accident despite their omission from the law. Thus, regardless of the limited-tort option of the other policy, a pedestrian, motorcyclist or bicyclist should receive full-tort coverage.