Limited Tort v. Full Tort Car Insurance: PA Drivers Need to Know the Difference

In our last posting, we reviewed potential dangers for companies (LLC’s and incorporated businesses) who fail to comply with state requirements for limited liability protections. In today’s post we’ll look at the threat of individual damages sustained in a motor vehicle accident which may be non-compensable based on that individual’s choice of automobile insurance coverage, and ways to minimize your potential exposure to this risk.

Car crashIn Pennsylvania, auto insurance companies are required to provide consumers with a choice between “full tort” coverage and “limited tort” coverage. “Limited tort” means you have a limited right to claim damages from an at-fault driver causing a motor vehicle accident for pain and suffering and other damages which are not out of pocket losses, such as medical bills, wage loss and property damage. The insurance premiums for limited tort coverage are usually less expensive than full tort coverage; however, the selection of limited tort has the potential to cost consumers significantly more in the event they are involved in an accident.

However, there are exceptions to limited tort which would permit you to recover damages for pain, suffering and other non-monetary damages, even if you elected limited tort coverage: (1) If you are struck by a motor vehicle while a pedestrian or operating a bicycle; (2) if you are an occupant of a “non-private passenger” vehicle (e.g. a commercial vehicle); (3) if the at-fault driver is convicted, pleads guilty or is placed in ARD (Accelerated Rehabilitative Disposition (probation)) for driving under the Influence of alcohol or drugs; (4)if the at-fault driver’s vehicle is registered in a state other than Pennsylvania; (5) if the at-fault driver is uninsured; and (6) if you suffer a “serious injury.” A “serious injury” is defined as “death, serious impairment of bodily function or permanent serious disfigurement.” Whether or not your suffer a “serious impairment” or “serious disfigurement” is determined by a number of factors.

It is also important to note that the person making the tort election binds all relatives residing in the same household by that election if they don’t have their own policy. In addition, if you own a motor vehicle which is not insured you are automatically deemed to have limited tort.

We suggest that you take a look at your auto insurance policy and discuss with your agent or insurance company the election you have on your current policy. In Auto Insurancereviewing your policy, be aware that “Full Coverage” does not mean the same as “Full Tort Coverage.” Also note that there are other ways to reduce your premiums. For example, if you have personal health insurance, you may want to consider reducing the amount of medical coverage under your auto policy. You can also remove unnecessary coverage (i.e. collision for an older vehicle which has a low re-sale value) or increase your deductibles on the existing coverage.

This area of insurance law can be complicated, and each nuance cannot be addressed in one post. If you have any questions, please do not hesitate to contact our personal injury attorneys – Bruce D. Hess, Esquire, Michael W. Cassidy, Esquire and Dennis R. Meakim, Esquire for more information.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

Corporations and LLC’s: How Protected Are You?

You’ve heard the radio ads and seen the television commercials. Companies  advertising a quick and easy way to incorporate your business. For a minimal fee, one of these internet-based companies will provide a new business owner with the forms necessary to register with a state government and begin their dream of “being their own boss.” But is that really all it takes?

What most people do not realize is that the paperwork does not end with LLCregistration. What the television and radio ads do not portray is that in order to protect yourself from liability, you must comply with additional state laws. This is why these ads are always certain to make clear they are not attorneys and are not offering legal advice.

Every state, including Pennsylvania and New Jersey, has its own set of unique laws describing what a business must do in order for its owners to be protected from personal liability. These often including the following: (1) properly capitalizing the new company; (2) maintaining company books and records; (3) keeping company bank accounts separate from personal accounts; and (4) signing documents such as contracts on behalf of the company only.

A recent case out of Bucks County, PA, Power Line Packaging v. Hermes Calgon/THG Acquisition LLC, C.P. Bucks No. 2010-02341 (Sep. 30, 2015), resulted in the owners of an LLC being required to pay a significant money judgment which was entered against the “company” due in large part to their failure to abide by the corporate formalities required under Pennsylvania law. In so ruling, the Court sent a clear message: if you want to form and do business as an LLC in this state, follows the rules!

Anyone wishing to start a new venture should be wary of using the services of an internet-based company to “incorporate” without also consulting an attorney. The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP, namely Thomas Guinan, George O’Connell, John Howland, Dennis Meakim, and Karen Angelucci, are all available to assist a new or existing business owner to protect against unseen liabilities.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourage all readers to seek and consult professional counsel before acting upon the information contained on this site.

Parental Liability: Think Twice before Hosting Your Child’s Next Party

A common concern faced by parents of many high-school aged children is the potential for legal liability (both criminal and civil) for underage drinking in their homes. Whether it is your child or his or her friends, if they are underage, it is indeed illegal in Pennsylvania for a parent to knowingly give and allow them to drink alcohol. A common reaction from parents to this fact is that they believe, perhaps accurately, that it is safer to allow their child and his or her friends to drink at home under their control as opposed to an unsupervised session elsewhere. Regardless of whether or not this belief is accurate, you should know the legal consequences of rolling the dice in such a manner.

Social Host

As explained by the Pennsylvania Liquor Control Board, it is a crime to sell or give alcohol to anyone under 21, even if they are your own kids. Therefore, if you are caught giving or selling alcohol to anyone under the age of 21, you have committed a crime. Adults charged under this law face graduated punishments. The first violation carries, in addition to a minimum fine of $1,000, possibly 6 months in the county jail. After the first violation, subsequent violations carry a minimum fine of $2,500 and possibly 6 months in the county jail. This is a misdemeanor of the third degree.

From a civil liability standpoint, it is also important to take into consideration the potential for being sued as a result of your decision to bring the underage party home. Pennsylvania law permits recovery of damages from a host who knowingly serves alcohol to the point of intoxication to a person under 21 years of age where someone is subsequently injured as a result of the intoxicated person’s negligence.

As explained above, there is potential for both civil and criminal punishments for parents who knowingly serve alcohol to a minor. However, the determination of liability in both contexts is generally one which is fact-specific and can vary based on the circumstances of your case. If you are a parent involved in a legal matter stemming from underage drinking in your home, it is important you are prepared. The legal team at Howland, Hess, Guinan, Torpey, Cassidy and O’Connell LLP are available to explain and defend your rights today.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

Postnuptial Agreements in Pennsylvania: A Better Alternative than the Pre-Nup?

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We’ve all heard the story or seen the episode on TV: the guy comes to the girl (or vice-versa) the night before the wedding and asks her to sign a piece of paper [prenuptial agreement] for property protection in the event of divorce. [Side note: if this is your story, that agreement may not be legally enforceable.] An often forgotten but, arguably, more practical and beneficial option is what is known legally as a postnuptial agreement.

The two documents, a prenuptial agreement (“prenup”) vs. postnuptial (“postnup”) agreement, are essentially the same except that a prenup is drafted and signed before the marriage and a postnup is a contract entered into between married couples or those in a civil union. Both contracts are generally written to settle a couples affairs and assets in the event of a later divorce. Notably, a prenup has more legal requirements than a postnup agreement. However, because it comes with more legal requirements, some states view prenuptial agreements more favorably than postnuptial agreements.

Regardless, these contracts are recognized as valid in Pennsylvania so long as certain conditions are satisfied. When compared to other states, Pennsylvania is relatively undemanding when it comes to the requirements that must be satisfied to create a valid postnuptial agreement. The two major requirements in Pennsylvania are that there is a full disclosure of assets and no fraud. Therefore, even if the agreement if entirely one-sided to one of the two spouses, it can still be enforced. You should know that, unlike other states, Pennsylvania generally does not look to “fairness” itself as an element in determining the enforceability of the contract.

You might be thinking to yourself, “we’ve been married for X number of years, so it’s too late to enter into such a contract now.” Wrong! It’s never too late to protect your individual financial assets, and you should be aware of your rights to do so after you say “I do.” A common concern is that presenting your spouse with this option might lead to marital strife. This is an understood and appreciated concern, but a 2008 CNN Article titled “Quit fighting – get a postnuptial agreement” sheds some light on why these post-marriage contracts may be a factor in SAVING a marriage. In fact, the couple cited their postnuptial agreement as the reason why they made it to their 30th wedding anniversary.

If you are considering a prenuptial or postnuptial agreement, an experienced and effective family law attorney is essential. Both forms of contract are complicated, as they should be, and require a proper accounting and disclosure. After reading the above, if you believe this option is a potential tool for you, contact the family law attorneys Michael Cassidy, Dennis Meakim, and Karen Angelucci at Howland Hess O’Connell. If you reside in Pennsylvania or New Jersey, we are licensed in your state.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourage all readers to seek and consult professional counsel before acting upon the information contained on this site.

Subcontractor’s Insurer Not Required to Defend General Contractor for General Contractor’s own Negligence

In a recent decision issued in the Carbon County Court of Common Pleas, and reported in the September 15, 2015 edition of Pennsylvania Law Weekly (Vol. XXXIII, No. 37, p. 38PLW854), it was ruled that a subcontractor’s agreement to obtain liability insurance to protect a general contractor from claims caused [in whole or in part] by the subcontractor does not require the subcontractor’s insurer to defend the general contractor against a claim alleging injuries from negligence caused by the general contractor.

Construction Contract

The underlying facts of the case are as follows: an employee of the subcontractor was injured while working on a project in Carbon County. The employee and his wife sued the general contractor, not the subcontractor. The plaintiffs’ complaint contained numerous allegations of negligence, but solely alleged this negligence on the part of the general contractor. Despite being the sole defendant named, the general contractor-defendant tendered the defense of the plaintiff’s claim to the subcontractor’s insurer. The insurer denied coverage, at which time the general contractor filed a third-party complaint against the subcontractor for breach of contract for failing to provide adequate coverage.

In reaching his decision, Common Pleas President Judge Roger N. Nanovic relied on a plain meaning interpretation of the insurance provisions and agreement between the general contractor and subcontractor. In so doing, Judge Nanovic ruled that the subcontractor’s insurer was not responsible for defending a claim alleging negligence solely by the general contractor and that the subcontractor did not breach its contract by failing to protect the general contractor. Although it was true that the general contractor was an additional assured under the subcontractor’s policy, the Court found that the general contractor was essentially a qualified additional assured. The Court ruled, based on the policy, that in order for the general contractor to be recognized as an additional insured under the subcontractor’s policy, the injuries alleged by the plaintiff must have been caused by the subcontractor’s own negligence. Since the only negligence alleged here was on the part of the general contractor, the insurer was correct in denying coverage. Furthermore, the Court ruled the subcontractor did not breach its contract with the general contractor because it complied with the agreement of defending the general contractor for injuries caused by the subcontractor. Requiring the subcontractor to cover for the negligence of the general contractor requires more specificity, absent in that policy and not called for in the agreement between the two parties at issue.

So if you’re a contractor or subcontractor, what does this mean for you? It means the language included (or, if you’re like the general contractor above, not included) can mean the difference between whose insurance is on the hook for claims arising in the general contractor-subcontractor setting. The legal team at Howland Hess O’Connell has extensive experience in transactional and litigation work in the field of Construction Law. If you’re a general contractor or subcontractor in need of legal advice or a review of your current insurance policies, schedule a consultation with Thomas Guinan, Karen Angelucci, or  John Howland today to find out how you can best protect yourself in light of this recent court holding.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourage all readers to seek and consult professional counsel before acting upon the information contained on this site.

Driving in New Jersey? KNOW YOUR RIGHTS!

october2007leb_img_33Whether you’re a New Jersey resident or just a traveler to the Shore, the State’s Supreme Court’s September, 2015 decision in State v. Witt just put a major dent in personal your rights while operating a vehicle in the State.

On September 24, 2015, the New Jersey Supreme Court announced that it will be turning back the clock and reverting to the rules of 1981 for warrantless searches of vehicles. Previous to this ruling, in order to search your vehicle without a warrant, a police officer needed probable cause (explained below) and was also required to demonstrate that an exigent circumstance (essentially, an emergency situation) justified the warrantless search (probable cause + exigent circumstance = warrantless search). Now, as a result of this ruling, police may search a vehicle without a warrant and without an exigent circumstance provided the searching officer has probable cause to believe it contains contraband or evidence of a crime (probable cause = warrantless search).

You may be wondering, what is “probable cause”? A scholarly professor in the field of criminal procedure once explained it as an officer’s belief there’s a fair probability (roughly estimated between 28% and 34%) that a crime has or is being committed, or that there is something of evidentiary value (like a gun, drugs, etc.) in the vehicle. The basis for this decision appears, in large part, to be the expediting of the process of a traffic stop. However, important civil liberties previously enjoyed by vehicle operators in New Jersey are being sacrificed.

What this means for you is that it now easier for police to search your car without your consent and without first obtaining a warrant. In evaluating New Jersey’s decision in Witt, it’s important that you know that while probable cause is a relatively low threshold it can be attacked by a skilled attorney in the field of criminal law. In addition to attacking the officer’s determination of probable cause, the officer’s reason for pulling you over in the first place is a matter which must be addressed and should be questioned by an experienced attorney.

If you’ve recently been involved in an automobile stop and search in New Jersey and are facing criminal charges resulting therefrom, it is important you know your rights. The legal team at Howland, Hess, Guinan, Torpey, Cassidy and O’Connell LLP are available to explain and defend your rights today.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourage all readers to seek and consult professional counsel before acting upon the information contained on this site.