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First Posted: 3/11/2014 Pennsylvania has one thing to say to owners of pothole-damaged vehicles looking to claim damages.
Tough luck.
Due largely to drastic temperature swings and plenty of snow, this year&#8217;s pothole extravaganza is the worst case in decades, engineers said. Motorists have been taking the brunt with damage to their vehicles.
Some want the commonwealth to pay when their tires blow out or rims get bent from potholes, but laws dating back to the 1970s protect state and local governments from paying damages specifically for potholes&#8217; excessive wear and tear on cars.
&#8220;It goes back a long way,&#8221; Kingston attorney Dave Aikens said. &#8220;I guess, in theory, it&#8217;s to prevent the state from potentially going bankrupt.&#8221; The purpose ultimately is to protect the general public, he said.
&#8220;I guess the reasoning was that (the state) would be sued or local governmental agencies would be sued. That could impose undue burden to taxpayers,&#8221; Aikens said.
As presumed agents of the people, governments, both state and local, are immune to prosecution for matters that fall under public interest, according to West&#8217;s Pennsylvania Practice, a legal reference.
Sovereign immunity laws in Pennsylvania draws inspiration from old British monarchical rule.
According to the text, &#8220;In its most popular form, sovereign immunity was embodied in the notion that &#8216;the King can do no wrong. &#8217; &#8220;
The law, as it stands now under Title 42, Chapter 85 of the Pennsylvania Code, is clear about damage to vehicles, saying, &#8220;Property damages shall not be recoverable under this paragraph.&#8221;
Injury claims
The state must make concessions for personal injury. But even in those cases, there is a cap on how much it can shell out. The claimant must prove there was a foreseeable risk, meaning PennDOT must have had notice and ample time to remedy the pothole in question.
Whether the state is liable for bodily harm or death due to potholes is up to the courts to decide based on fact, Aikens said.
&#8220;If someone is injured as result of an accident, PennDOT can be liable, but that&#8217;s where you get into some of the gray areas&#8221; of litigation, Aikens said.
If PennDOT had no knowledge of a potentially hazardous pothole, the department probably will not be liable, he said. And if a driver winds up injured after striking a pothole PennDOT knew of only one or two days before, PennDOT may not be held liable either, Aikens added.
Insurance pays first
A driver&#8217;s auto insurance coverage is first to pay for medical expenses, said David A. Miller, an attorney with Michael J. O&#8217;Connor and Associates in Frackville.
&#8220;If medical bills exceed that amount, it starts to get complicated because there&#8217;s health insurance on top of that,&#8221; Miller said.
The courts could decide the government owes for non-economic damages like pain and suffering; however, injury suits more often are ruled on a case-by-case basis and grow complex. Miller recommended seeking legal help.
&#8220;There&#8217;s so many ways to get turned around here, it would make sense here to at least have some type of council,&#8221; Miller said.
The pothole count left for road crews to mend also comes into question, Aikens said.
&#8220;This winter, for example, there&#8217;s potholes everywhere,&#8221; Aikens said. &#8220;If there&#8217;s 1,000 potholes PennDOT has to fix, that would come into play on whether they acted reasonably.&#8221;
Restitution possible
Those who believe they are owed restitution for damage or injury from potholes can file claims with the state Bureau of Risk & Insurance Management; however, the department reminds drivers it will deny reimbursement requests for damaged property.
&#8220;Although we regret your misfortune &#8230; we are strictly limited by the provisions of the law,&#8221; the department says on its website.
Even with allowances for injury, state and local governments are capped on how much they can pay out for a claim.
The state is limited to paying up to $250,000 per plaintiff up to $1 million in a multiparty suit. Local governments are capped at $500,000.
With guarded limits on how much may be spent, it could come into question whether the payoff will outweigh legal costs, Aikens said.
Aikens, who has practiced law for about 20 years in Pennsylvania, could not recall any suits after pothole-caused damages.
&#8220;I&#8217;m sure I&#8217;ve looked at a few cases,&#8221; he said. &#8220;Candidly, they don&#8217;t come up that often.&#8221;

Don’t expect state to pony up for pothole damage