Hit by a Car in Pennsylvania: Who Pays First and How Long You Have

Attorney Answer

Two kinds of money are involved, on two different clocks. Your medical bills are paid first by auto insurance — your own household's policy if there is one, and otherwise, if you were on foot or on a bicycle, the policy on the car that hit you. Everything else (wages beyond those benefits, pain and suffering, future care) is a claim against the driver, which has to be filed in court within two years of the crash unless it settles first. Whether pain and suffering is recoverable can depend on a choice you made on your own policy: full tort or limited tort.

Your medical bills: first-party benefits. Every Pennsylvania auto policy carries a medical benefit, regardless of who was at fault. 75 Pa.C.S. § 1711(a):

(a) Medical benefit.-- An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedalcycles or like type vehicles, registered and operated in this Commonwealth, shall include coverage providing a medical benefit in the amount of $5,000.

Which policy pays is set by an order of priority in 75 Pa.C.S. § 1713(a):

(a) General rule.-- Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority:

First in line is a policy on which you are the named insured, then one that covers you as a member of the household, then, if you were in a vehicle, the policy on that vehicle. If none of those applies and you were not in a vehicle, § 1713(a)(4) supplies the next one:

(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident.

If no policy applies to you at all, 75 Pa.C.S. § 1752(a) makes certain people eligible to claim benefits from the Assigned Claims Plan instead. Its conditions include that you live in Pennsylvania, were hurt in a Pennsylvania crash, do not own a vehicle required to be registered, and are not otherwise entitled to first-party benefits.

One exception matters. Under 75 Pa.C.S. § 1714, an owner of a currently registered vehicle who did not keep insurance on it cannot recover first-party benefits at all.

The claim against the driver. Medical benefits stop at the policy's limits and pay nothing for pain and suffering. The rest is a negligence claim against the driver, usually paid by the driver's liability insurer. 42 Pa.C.S. § 5524 sets the deadline:

The following actions and proceedings must be commenced within two years:

(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

If you were partly at fault, 42 Pa.C.S. § 7102(a) reduces what you recover by your share, and bars recovery only if your share was greater than the driver's.

Pain and suffering: full tort or limited tort. If you, or someone in your household, chose the limited tort option on a Pennsylvania auto policy, 75 Pa.C.S. § 1705(d) limits the claim for noneconomic loss:

(d) Limited tort alternative.-- Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss, except that:

“Serious injury” is defined in 75 Pa.C.S. § 1702:

"Serious injury." A personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.

Whether an injury is a “serious impairment of body function” is a judgment about which body function was affected and how seriously, judged by the extent and duration of the impairment and the treatment it needed; it does not have to be permanent. That test comes from the Supreme Court of Pennsylvania in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), a case the injured person lost on a mild foot sprain and a few missed work shifts. Limited tort never limits your medical bills, lost wages or other economic loss, and § 1705(d)(1)(iv) restores full tort rights when the driver at fault had no insurance. If you own no car and are not covered by any auto policy, 75 Pa.C.S. § 1705(b)(3) leaves you free to sue for all of your losses:

(3) An individual who is not an owner of a currently registered private passenger motor vehicle and who is not a named insured or insured under any private passenger motor vehicle policy shall not be precluded from maintaining an action for noneconomic loss or economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law.

If your own insurer does not pay. A claim against your own insurer for the medical benefits has its own clock, longer than two years. 75 Pa.C.S. § 1721(a):

(a) General rule.-- If benefits have not been paid, an action for first party benefits shall be commenced within four years from the date of the accident giving rise to the claim. If first party benefits have been paid, an action for further benefits shall be commenced within four years from the date of the last payment.

What you can do

1. Get medical care, follow through with it, and keep every record and bill.

2. Tell your own auto insurer, or the insurer of anyone you live with, about the crash and open a first-party medical claim. If no one in your household has auto insurance, the claim goes to the insurer of the vehicle you were riding in, or, if you were on foot or on a bicycle, to the insurer of the car that hit you.

3. Get the police report. It should identify the driver and the driver's insurer.

4. Find your policy's declarations page and check whether it says full tort or limited tort.

5. Even if you are handling this yourself, you would be best served by a brief phone consultation with a local Pennsylvania attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court actually handles this — is worth more than any general guidance, including this page.

⏱ Time limits apply. A lawsuit against the driver must be filed within two years under 42 Pa.C.S. § 5524(2). A suit against your own insurer over unpaid medical benefits must be filed within four years under 75 Pa.C.S. § 1721(a). A lawyer can tell you how either applies to your situation.