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HomeMy WebLinkAbout96-2836 civilMICHAEL N. BELICIC and TAMMY S. BELICIC, Ve Plaintiffs, : WILLIAM EUGENE HAUBERT, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 96-2836 CIVIL TERM Defendant. : : IN RE: PLAINTIFF'S MOTION FOR PARTIAT. SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, GUIDO, J.J. AND NOW, this ORDER day of OCTOBER, 1998, Plaintiff's Motion for Partial Summary Judgment is DENIED. By Edward E. Guido, J. James D. Flower, Jr., Esquire For the Plaintiffs Harvey Freedenberg, Esquire For the Defendant :sld MICHAEL N. BELICIC and TAMMY S. BELICIC, Plaintiffs, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ~I~IJ~ EHGE~E H~HBER~ : ~0. 96-2836 ClVI~ ~ERM Defendant. : IN RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, GUIDO, J.J. OPINION AND ORDER OF COURT On June 11, 1994, Plaintiff Michael Belicic (hereinafter "Plaintiff") was involved in a motor vehicle accident for which Defendant has admitted responsibility. Plaintiff had selected the limited tort option in order to reduce the premium on his automobile insurance policy.~ Therefore, before he can pursue a claim for noneconomic damages he must address the threshold issue of whether any of the injuries he sustained in the accident can be considered a serious injury within the meaning of Pennsylvania's Motor Vehicle Financial Responsibility Law (hereinafter "MVFRL..).2 ~See 75 Pa. C.S.A. § 1705(a). 2Section 1705(d) of the MVFRL reads in relevant part: § 1705 Election of tort options · · · (d) Limitod tort altornativo.--~ach por$on who olo¢t$ tho limitod tort alternat±ve remains el±~±ble to soek componsat±on for econom±c loss susta±ned ±n a motor vehicle accident as the consequonco of tho fault of another porson pursuant go appl±cablo tort law. ~nless the ±njury susta±ned ±s a ~r£ou~ £njur~, oath person who ±s bound by the limited tort election shall be precluded from ma±nta±nin~ an action for an7 noneconom±c loss .... (omphas±$ addod) 75 ~a. C.S.~. § 1705(d). NO. 96-2836 CIVIL On July 23, 1998, Plaintiff filed a Motion for Partial Summary Judgment asking us to hold as a matter of law that the injuries he sustained in the accident constitute "serious injury" as defined under the MVFRL.3 Defendant argues that the issue of whether Plaintiff sustained a serious injury in the accident should be a question for the jury. Both parties have submitted briefs and this matter is ready for disposition. FACTS In determing whether to grant a Motion for Summary Judgment we must examine the record in the light most favorable to the non-moving party. City of York v. Schaefer Temporary Serv., Inc., 667 A.2d 495 (Pa. Commw. Ct. 1995); Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996). Applying that standard to the case at bar, the Defendant would be able to produce the following evidence at trial: 1) Plaintiff elected the limited tort option on his auto insurance policy.4 2) Immediately after the June 11, 1994 accident, Plaintiff had pain in his right shoulder and right arm.s 3) On June 21, 1994, he complained of tenderness and exhibited 3Section 1702 defines serious injury as "(a)personal injury resulting in death, serious impairment of a body function or permanent serious disfigurement." 75 Pa. C.S.A. ~ 1702. 4Complaint Paragraphs 4, 7-9. Answer Paragraphs 4, 7-9. SFebruary 6, 1996 letter of Dr. Zeliger. NO. 96-2836 CIVIL greatly reduced range of motion in his right shoulder.~ 4) On July 12, 1994, Dr. Pariser noted that Plaintiff had "recovered quite well," had full range of motion and had no significant pain.~ 5) Plaintiff had a recurrence of the problems in his shoulder and returned to Dr. Pariser on September 21, 1994.~ 6) On November 4, 1994, Plaintiff indicated to Dr. Pariser that his shoulder "feels great.''~ 7) On December 21, 1994, Plaintiff reported that he had not fully recovered and that changes in weather seem to affect him.~° 8) On February 13, 1995, he reported to Dr. Pariser that he had been shoveling snow and had some problems with his shoulder.~ 9) On April 26, 1995 his shoulder pain had increased and his range of motion was restricted. Physical therapy was prescribed.~ 10) On June 21, 1995, Plaintiff had arthroscopic surgery performed on his right shoulder by Dr. Zeliger.TM ~Notes of Dr. Pariser dated June 21, 1994. ~Notes of Dr. Pariser dated July 12, 1994. 8Notes of Dr. Pariser dated September 21, 1994. ~Notes of Dr. Pariser dated November 4, 1994. ~°Notes of Dr. Pariser dated December 21, 1994. ~Notes of Dr. Pariser dated February 13, 1995. ~Notes of Dr. Pariser dated April 26, 1995. ~February 6, 1996 letter of Dr. Zeliger. NO. 96-2836 CIVIL 11) On July 19, 1995 Plaintiff was "doing well." He had "good motion, relief of pain, and improving strength...".TM 12) Plaintiff improved until the end of August when an employee at work collided with his shoulder causing an injury which developed into a frozen shoulder.~ A second surgery resulted in March of 1997.~ 13) Plaintiff is employed as a plumbing foreman. Although he experienced some pain in the performance of his job, he had the flexibility to stop work at will and to order someone else to complete his task.~ 14) Prior to the August 1995 collision with his co-worker, Plaintiff only missed one week from work. This was a result of his surgery on June 21, 1995. In addition, he was on light duty for three (3) weeks as a result of said surgery.~ 15) Plaintiff can lift up to seventy pounds without pain. He can actually lift more than that, but it causes pain.~ 20 16) Plaintiff can still bow hunt and fish, although some minor adjustments have been necessary. , ~February 6, 1996 letter of Dr. Zeliger. ~SLetter of Dr. Zeliger dated February 6, 1996. ~Letter of Dr. Kaneda dated November 5, 1997. ~Plaintiff's deposition at pages 7-8, 23. ~OPlaintiff's deposition at pages 26-27. ~Plaintiff's deposition at page 51. ~°Plaintiff's deposition at pages 58-59. NO. 96-2836 CIVIL DISCUSSION Plaintiff's Motion for Partial Summary Judgment is governed by Pa. Rule of Civil Procedure 1035.2 which provides in relevant part as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report .... Pa.R.Civ. P. 1035.2. In the case of Dodson v. Elve¥, 445 Pa. Super. 479, 665 A.2d 1223 (1995), our Superior Court addressed the function of trial courts in limited tort cases. The Superior Court stated the following: In the context of summary judgment the court must determine initially 1) whether the Plaintiff as moving party has established that he or she has suffered serious impairment of a body function; 2) whether the defense as moving party has established that plaintiff has not suffered serious impairment of a body function; or 3) whether there remains a genuine issue of material fact for the jury to decide. (citation omitted) We emphasize that in deciding whether a material issue of fact exists for the jury, the judge should not focus on the injury but should focus on the nature and extent of plaintiff's impairment as a consequence of the injury. 445 Pa. Super. at 494, 665 A.2d at 1231. Applying the above standard to the case at bar, we are satisfied that genuine issues of material fact remain for the jury to decide. Certainly there is the issue as to whether the injury or reinjury that occurred in August of 1995 is related to the motor vehicle accident. There is also a substantial question NO. 96-2836 CIVIL as to the nature and extent of Plaintiff's impairment. Plaintiff will be able to produce evidence at trial to the effect that his injury has seriously affected his ability to work and function in his every day life.2~ Defendant, on the other hand, will be able to produce the facts previously set forth.22 Whether or not Plaintiff has sustained a serious injury as defined by Section 1702 of the MVFRL is a question to be properly decided by a jury. Therefore, we must deny Plaintiff's Motion for Partial Summary Judgment. ORDER AND NOW, this ~~ day of OCTOBER, 1998, Plaintiff's Motion for Partial Summary Judgment is DENIED. By the Court, James D. Flower, Jr., Esquire For the Plaintiffs ~s/ Edward E. Guido Edward E. Guido, J. Harvey Freedenberg, Esquire For the Defendant :sld ~The facts set out above are those which are most favorable to Defendant. There are many other facts which, if believed by the jury, would justify a finding that Plaintiff sustained a "serious impairment of a body function". 2~Interestingly, the injuries and impairment to Plaintiff in this case (when viewed in the light most favorable to the Defendant) are similar to those sustained by the plaintiff in Dodson. The Dodson Court held as a matter of law that Dodson's injuries did no~ amount to serious injury.