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The tough economic decisions associated with taking limited-tort cases have led to a drop in the number of limited-tort filings, attorneys from around the state have told the Law Weekly.

“There is a noticeable drop,” said attorney Daniel E. Cummins of Foley, Comerford & Cummins. “Less and less of those types of cases are being pursued.”

Limited tort, as opposed to full tort, does not allow a plaintiff to pursue a claim for noneconomic damages unless the suit fits into an exception—one of the most-litigated exceptions being that the plaintiff sustained a “serious injury.”

According to Cummins, some recent trial court decisions granting defendants summary judgment on the serious-injury issue may have led some attorneys to be more reluctant to file limited-tort cases. But carriers as whole, he said, tend to look closer at limited-tort cases because of the added hurdle for plaintiffs.

James C. Haggerty of Haggerty, Goldberg, Schleifer & Kupersmith said that more than 10 years ago limited liability tort claims were handled largely by an insurance carrier’s claims department, but in the past decade carriers have taken an approach to handling the claims that is driven by the bottom line.

“There’s a different focus in the insurance company,” he said. “They’re actively trying to discourage the filing of lawsuits.”

Forcing these cases, which can often be of limited value, to trial has led an increasing number of attorneys to think twice about filing limited-tort claims, Haggerty said.

“They’re recognizing that they have more resources than the lawyers do in the long run, and recognizing that they can make the trial for limited-tort cases cost-prohibitive for the average practitioner,” Haggerty said. “I think practitioners have become more aware of the cost.”

The 1998 state Supreme Court case Washington v. Baxter allowed plaintiffs to overcome the limited-tort threshold if a serious injury exists. According to SchmidtKramer attorney Scott Cooper, since that time, the number of limited-tort cases being filed has “slowly trickled down” by about 40 percent to 50 percent. Attorneys who spoke with the Law Weekly agreed with that estimate.

Another reason for the decline in filings, according to Cooper, is that in the past decade the state Supreme and Superior courts have addressed most of the outstanding questions regarding exceptions to limited tort.

Cooper noted the Supreme Court’s 2005 decisions in L.S. v. Eschbach, which held that pedestrians injured by automobiles are not bound by limited-tort coverage, and Holland v. Marcy, which held that children of uninsured motorists have the right to full tort coverage even if their parents have limited tort coverage.

“Now almost every legal issue’s been settled,” he said. “There’s less of a reason to file for legal issues.”

Attorneys, Cooper said, are much less likely to file a limited-liability tort if they don’t think it will settle. A garden-variety case valued at around $30,000 would generally not be taken unless it fit clearly into one of the exceptions, Cooper said.

If an injured party receives wage-loss coverage or personal injury insurance for out-of-pocket expenses, there is often little left to recover, Cooper said.

Exceeding the serious-injury threshold can be a difficult task in front of a jury, Cooper said. He noted that an important factor in proving a serious injury is whether a person’s daily activities have been affected, and depending on where a case is tried in the state, similar injuries will resonate differently.

An injury that hinders one’s ability to hunt, for instance, would likely garner more sympathy from a Juniata County jury than a jury in Montgomery County, Cooper said.

“They say: ‘Well, that wouldn’t be serious for me, and if it’s not serious for me then it can’t be serious for that person,’” he said. “A person on Social Security disability is going to have a really hard time establishing that they have a serious injury.”

Michael C. Heyden Jr. of Litchfield Calvo said a deeper understanding of the Motor Vehicle Financial Responsibility Law, which governs the limited-tort arena, and whether a claim will pierce the serious-injury threshold has led cases to settle more quickly and for parties to file less.

While he agreed that over the past decade, limited-tort filings have been on the decline, he said that in the past few years he has seen a small “revival” by some attorneys looking to take the cases to trial.

“I think some attorneys have found ways to work up cases that get around the limited-tort exception,” he said. “I think some firms tend to cast off the limited-tort cases, and some people are seeing an opportunity to make a little money on them.”

According to attorney Marc I. Simon of Simon & Simon, fewer attorneys filing limited-tort cases has allowed his firm to specialize in the area. He said his firm’s limited-tort filings have nearly quadrupled in the past four years.

Plaintiffs, Simon said, usually won’t see the possibility of a favorable settlement until they’re “on the courthouse steps,” and most attorneys are typically unwilling to risk the money it takes to get cases that far.

Pursuing a limited-tort claim is costly and requires at least taped deposition testimony from a doctor, which can cost thousands of dollars.

“Most lawyers look at the groups of cases and think limited torts are at the bottom. They’re not going to spend $6,500 to bring it to a jury trial,” Simon said. “They make a business decision from day one that they can’t afford to spend the money on a limited-tort case with the potential of not getting any recovery, so they reject the claim and don’t file a lawsuit.”

Simon said the two main ingredients for having a successful case are that the plaintiff is likeable and that the jury is in Philadelphia. According to Simon, limited tort policies in Philadelphia typically are half the cost of a full tort policy, as opposed to about 10 percent cheaper for the rest of the state.

“Ninety-five percent of Philadelphians have limited tort policies and have been wronged by the system,” Simon said. “Outside Philadelphia, you have business owners and people who have full tort, and when they hear [plaintiffs] don’t have full tort, they want to punish them.”

Arbitrators are also typically more conservative when it comes to finding serious injuries, which has also added to attorneys’ reluctance to file limited-tort claims, Simon said.

According to Simon, his firm is trying to bring more limited-liability cases in front of juries.

“The myth that you cannot win a limited-tort case comes from failed arbitrations and bad cases on bad facts that do go to verdict, the guy who has no damage to his car and doesn’t go to a doctor for six months. That’s the perception, and it has become the rule,” he said. “We think, at the jury level, they are very viable claims.”

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •