Optional No-Fault

The possible advantages of adopting a system that would allow each motorist the choice between no-fault and the tort system has begun to receive attention in a number of states. [74] Under an optional no-fault system, motorists who chose no-fault would be largely or completely exempt from tort liability for bodily injury and thus the need to purchase bodily injury liability coverage. In exchange for this exemption, they would not be allowed to pursue a tort claim. Persons who chose to remain subject to the tort system would maintain the ability to sue other drivers who have opted for the tort system, and they could be sued by such drivers. They also would be able to purchase first-party coverage, similar to uninsured motorists coverage, that would provide payment if they were injured by a driver who had chosen no-fault. Variations in the amount of no-fault personal injury protection coverage that is required and in the magnitude of the tort exemption for persons who choose no-fault are possible under this approach. [75]

There exist two possible advantages of optional no-fault compared to mandatory no-fault. First, optional no-fault is less coercive than mandatory no-fault, and it is consistent with the principle of consumer sovereignty. Second, in the event that strict, mandatory limitations on tort liability are politically infeasible, the possibility exists that optional no-fault may be able to attract enough support from the public to be enacted despite opposition from trial attorneys and other parties who oppose tort limitations.