I’m a New Jersey resident and was in a car accident in Philadelphia. I have limitation on lawsuit on my NJ auto policy. Can I still sue the other driver for my injuries?

I'm a New Jersey resident and was in a car accident in Philadelphia. I have limitation on lawsuit on my NJ auto policy. Can I still sue the other driver for my injuries? In most cases, a defendant (at-fault driver) can raise the specific defense - that the plaintiff has limitation on lawsuit - but only if the defendant is subject to New Jersey law.

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Usually, a New Jersey resident’s tort election does not apply when a car accident injury happens out of state. Unlike New Jersey’s deemer statute (which forces the limitation on lawsuit election on all non-resident drivers who are injured in auto accidents in NJ), Pennsylvania imposes no such mandate. In fact, Pennsylvania auto insurance law tends to be far more lenient when it comes to limited tort (AKA “limitation on lawsuit” or “verbal threshold” in New Jersey).

However, when a New Jersey resident is injured while driving in Pennsylvania, they may still be subject to their tort election if the at-fault driver happens to be a New Jersey resident. If the other (at-fault) driver was a resident of New Jersey, with an auto insurance policy issued in New Jersey, then the limitation on lawsuit tort election will probably apply.

Related: Can You Sue with Limited Tort in Pennsylvania or Limitation on Lawsuit in New Jersey? (Part 2) [A discussion of Pennsylvania and New Jersey residents’ rights when injured in auto accidents that happen out of state.]

Under NJ law, the limitation on lawsuit defense can only be raised when the defendant is insured in accordance with New Jersey no-fault PIP law. There is a New Jersey case which explains this point. See Zabilowicz v. Kelsey, a 2009 case, where the Supreme Court of New Jersey explained the prerequisites necessary for a defendant to raise the defense, “a defendant who wishes to invoke the limitation-on-lawsuit threshold against a plaintiff must demonstrate that she is eligible for no-fault PIP benefits under [New Jersey PIP law].”

In this situation, if the at-fault driver was a New Jersey resident, then you ‘d probably be subject to the limitation on lawsuit tort election. Under NJ law, you can only recover pain and suffering damages if the injury falls within one of the six statutory exceptions, dismemberment, loss of a fetus, significant disfigurement or scarring, displaced fractures or a permanent injury.

However, assuming that the at-fault driver was a Pennsylvania resident (or a resident of any other state), you would retain full tort rights. This means that you would not have to show that your injuries fall within the statutory exceptions. You would be able to file a car accident lawsuit to recover for pain and suffering damages, in addition to financial losses like medical expenses or lost wages.

For more information, please visit our PA & NJ auto accident law library.

Tort injury laws in auto accidents are very complex, and laws can and do change. Please contact our law office to discuss your case. Our Philadelphia car accident lawyers offer a free consultation. (866) 641-0806

**This website does not provide legal advice. Every case is unique and it is crucial to get a qualified, expert legal opinion prior to making any decisions about your case. See the full disclaimer at the bottom of this page.