Guarded
Time to pony up for your rights
Published December 10, 2003

As Americans, we generally believe that we hold certain rights that cannot be removed. Most simply, these are the rights to life, liberty and happiness; a more complex definition is embodied in the Bill of Rights, and in both the original text of the Constitution and the other Amendments. These rights are considered inalienable; they cannot be taken away without the due process of law. Most Americans also take for granted that they have the right to sue whomever they please for whatever amount seems appropriate. On this score, however, Pennsylvanians may be wrong.

A friend of mine recently brought to my attention an interesting tidbit of information. He told me that his automobile insurance policy contained a limited tort clause, limiting his ability to sue and collect in cases of physical and mental suffering, unless such injuries were deemed "severe." The insurance information made it clear that my friend could upgrade to full tort rights by paying an additional amount of some $200 a year. In essence, this system requires a payment for full access to a person's rights.

My initial response was to look up more information, and the Pennsylvania Department of Insurance obliged (www.ins.state.pa.us). The information on this site confirmed my friend's information but added that this is a voluntary act on the part of the person buying insurance, who essentially is waiving his or her right to sue in favor of a lower premium payment. Well, I thought, that's OK. After all, if that's what you want to do, you should be free to do it; as long as the insurance company lets you make an informed choice, you're deciding which option is best.

It occurred to me then, however, that my friend had been surprised to find this information, which suggests that he was not informed initially that he had this choice available to him. It isn't surprising that this would be the case; insurance companies hardly benefit by selling policies that cost an extra $200 a year if their competition doesn't bother even offering the full tort package. Why muddy the waters? If a customer wants the full tort coverage, they'll just have to take it upon themselves to ask for it and pay for it.

My next thought led me in a new direction. True, the limited tort option is just that, an option that a person might decide on if they want to save money and don't mind giving up their right to sue. What, however, of the people who don't really have an option? Most of us pay more than we would like for car insurance anyway, and here is a prime example of a system set to limit the rights of everyone unable to come up with that extra money. If I happen to need a car and am barely able to afford basic insurance coverage, am I likely to spend an additional $200 dollars a year--not an insignificant amount for many people--to gain my full right to sue?

What this system is doing, in essence, deprives poor people of their rights. Why should the person who can afford an additional premium each year be able to sue for a greater amount, or more easily than those who cannot afford that amount? The insurance agencies' answer is that they are lowering prices for low income people by limiting their own liability; if everyone wanted to enjoy equal right to sue, then everyone would have to pay the higher premium, and then some poor people would be left without insurance at all, and hence without access to a car. Granted. But is there another way to avoid this thorny issue while also maintaining the right to sue for everyone?

Here's a possibility to consider: if caps are established under tort reform on the size of monetary awards, then insurance premiums will decline. This will allow everyone to sue equally under the capped system. Caps, however, are a limit in and of themselves, and as such they curtail the ability of certain cases to bring about social change. One can certainly argue the merits of using the legal system as a means of social change--it's a very imperfect and double-edged sword. But the idea of unlimited awards can be preserved in this new system as well: simply let those who wish to pay an additional amount access a higher, unlimited tort level.

True, this sounds very similar to the current system, but we are not depriving anyone of their rights; we're simply adding an additional insurance policy with a high payout. No one complains that some people can afford $10,000 of vehicular medical coverage, while others can afford $100,000. That's just the way it is. My system is no different.

This is just a possibility, of course, but I do think that this is something that bears some serious thought. No matter how you look at it, some people are effectively being denied full access to their rights. Not all of them have acceded to this situation voluntarily. That is a violation of the principals of this country and this state, and it should be addressed.