On July 1, 2011 the federal District Court in the Middle District of Pennsylvania held in Calestini v. Progressive, 3:09-CV-1679 (Caputo J., M.D. Pa. July 1, 2011) that an insurance company’s allegation in its answer of "Plaintiff’s Complaint is or may be barred or otherwise limited by the Pennsylvania Motor Vehicle Financial Responsibility Law…" is sufficient to preserve "limited tort" as an affirmative defense.
The Plaintiff argued that Progressive did not adequately preserve the defense of "limited tort" because it was not specifically mentioned in its Answer and Affirmative Defenses to the Complaint. The Court finds that the allegation is sufficient to preserve the defense and Progressive did not waive the defense in the case. Therefore, it is able to raise the defense at trial.
For a copy of the Memorandum feel free to contact Scott Cooper at SchmidtKramer.