Limited Tort, a DUI Conviction, and Stacked Underinsured Motorist Coverage
Dre is a Philadelphia delivery driver. His auto policy covers three vehicles, each with $100,000/$300,000 liability, $100,000 uninsured motorist, and $100,000 underinsured motorist coverage, with stacking elected. The policy carries the statutory minimum $5,000 first-party medical benefit and no optional wage loss benefit. Dre elected limited tort at inception. In January a driver carrying a 15/30/5 policy runs a red light and strikes him. That driver is later convicted of driving under the influence. Dre's medical bills are $46,000, his lost wages are $12,000, and he is out of work for five months with soft-tissue injuries that eventually resolve. He has employer-provided health insurance. His total damages, including pain and suffering, are fairly evaluated at $220,000.
1. Does Dre's limited tort election bar his claim for pain and suffering?
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No. Limited tort waives the right to sue for non-economic damages unless the injury meets the statutory "serious injury" definition (death, serious impairment of body function, or permanent serious disfigurement). His resolving soft-tissue injuries probably fall short of that threshold - that is exactly why the election matters.
But the statute also lists exceptions where limited tort simply does not apply, and one of them is a DUI conviction arising out of the same accident. The conviction must be established, and the carrier will verify it rather than take the claimant's word, but once it is established the limited tort election is irrelevant and the full tort claim proceeds.
For this case: the tortfeasor's liability limits of $15,000/$30,000 govern what the tortfeasor's carrier pays, subject to the per-person $15,000 cap for Dre's bodily injury claim - not the $30,000 per-accident figure.
2. How much underinsured motorist coverage is available, and what will Dre actually collect?
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Two questions: the available limit, then the amount payable.
Available limit. Stacking was elected, and Pennsylvania permits intra-policy stacking of the limits on multiple vehicles under one policy: 3 × $100,000 = $300,000 available. (Inter-policy stacking of separate policies is not permitted.)
Amount payable. UIM responds to damages in excess of what the tortfeasor's liability coverage pays, and the UIM limit is reduced by amounts recovered from the tortfeasor. Damages are $220,000. The tortfeasor's carrier pays its $15,000 per-person limit. Uncompensated damages = $220,000 − $15,000 = $205,000.
That figure exceeds the $300,000 stacked limit? No - it does not, but the carrier's obligation is the lesser of uncompensated damages and the available limit, so Dre collects $205,000, not $300,000. The common error is treating the stacked limit as a benefit rather than a ceiling.
3. How are the medical bills and lost wages paid before the UIM claim is resolved?
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Medical. Pennsylvania requires insurers to offer at least $5,000 of first-party medical benefits, and Dre bought only that minimum. The auto insurer pays the first $5,000, and because he elected medical benefits coverage the health plan is secondary up to that amount. The remaining $41,000 goes to his employer health plan.
Wage loss. Wage loss is an optional first-party benefit in Pennsylvania and Dre did not buy it. So there is no PIP wage loss payment - the $12,000 is recovered as economic damages in the tort/UIM claim.
One caution against double recovery: $41,000 of the $55,000 economic loss was already paid by the health plan. That amount is not collected again from the UIM carrier; the health plan may assert a reimbursement claim, and the UIM recovery should be structured around total damages less collateral-source payments actually received and less the tortfeasor's payment.