HomeMy WebLinkAbout97-4980 CivilSUSAN LEBO and
RONALD LEBO, her
husband,
Plaintiffs
Vo
NANCY K. MUMPER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-4980 CIVIL TERM
IN RE: DEFENDANT'S MOTION FOR PARTIAL
SUMMARY JUDGMENT
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
ORDER OF COURT
AND NOW, this 2~ day of February, 1999, a~er careful consideration of Defendant's
motion for partial summary judgment, and for the reasons stated in the accompanying
opinion, the motion for partial summary judgment is denied.
BY THE COURT,
Eric J. Wiener, Esq.
HANDLER & WIENER
319 Market Street
P.O. Box 1177
Harrisburg, PA 17108-1177
Attorney for Plaintiffs
J.~esley'Oler,~., J. '~" ~/'
/
Thomas E. Brenner, Esq.
GOLDBERG, KATZMAN & SHIPMAN, P.C.
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendant
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SUSAN LEBO and
RONALD LEBO, her
husband,
Plaintiffs
V.
NANCY K. MUMPER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-4980 CIVIL TERM
IN RE: DEFENDANT'S MOTION FOR PARTIAL
SUMMARY JUDGMENT
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
Oler, J., Februaryd3, 1999.
In this negligence case, a limited tort plaintiff has filed a complaint against an
individual defendant. The complaint presents a count for personal injuries against the
Defendant on behalf of the limited tort plaintiff.~ The complaint also states a claim for loss
of consortium on behalf of the limited tort plaintiff's husband against the Defendant?
Presently before the Court is a motion for partial summary judgment filed by the
Defendant. The Defendant notes that a plaintiff who elects the limited tort option for his or
her car insurance can recover noneconomic damages only if that plaintiff has suffered a
"serious injury." Defendant further notes that, if a limited tort plaintiff cannot establish that
he or she has suffered a "serious injury," the defendant involved is entitled to summary
judgment on the issue of noneconomic damages.
For the reasons stated in this opinion, the Court will deny Defendant's motion for
summary judgment on the issue of recovery for noneconomic damages.
Plaintiffs' Complaint, para. 10-15.
Plaintiffs' Complaint, para. 16-19.
STATEMENT OF FACTS
The following facts are alleged in PlaintifFs complaint: On March 8, 1996, at
approximately 7:35 a.m., Plaintiff Susan Lebo was traveling north in the left lane of travel
on Route 81 in Middlesex Township, Cumberland County, near Exit 17.3 At this time,
Defendant Nancy K. Mumper lost control of her automobile while attempting to enter onto
Route 81 at the interchange of Exit 17, and slid into the path of Plaintiff Susan Lebo, thereby
causing a collision.4
As a result of the accident, Plaintiff Susan Lebo sustained a number of injuries,
including a Galeazzi's type fracture of her right forearm, which subsequently necessitated
two surgeries,s These surgeries left a scar on the back of Plaintiff's forearm6 measuring 11
cm. in length, 3 mm. in width, and 1-2 mm. in height.?
At the time of the accident, the Plaintiff was insured by a USF&G motor vehicle
insurance policy.8 Prior to the date of the accident, Plaintiff had elected the limited tort
3 Plaintiffs' Complaint, para. 5
4 Plaintiffs' Complaint, para. 5.
5 Plaintiffs' Complaint, para. 9; Plaintiff Susan Lebo underwent two surgeries as a
result of her forearm fracture: (1) an open reduction and internal fixation of the right forearm
by means of a metallic plate and six metallic screws; and (2) an open reduction to remove
the metallic plate and six screws.
6 Plaintiff Susan Lebo was involved in a motor vehicle accident in 1992, as well. In
this accident, Plaintiff's right forearm was fractured and required surgery. This surgery left
a residual scar on her right forearm. Defendant asserts that the scar on Plaintiffs right
forearm caused by the accident involved in this matter is only one inch longer than the earlier
scar from the 1992 accident. See Defendant's Motion for Summary Judgment, para. 7-11;
see also Plaintiffs' Answer to Defendant's Motion for Summary Judgment, para. 7-11.
7 Plaintiffs' Complaint, para. 9.
Plaintiffs' Complaint, para. 7.
option provided for in the Pennsylvania Motor Vehicle Financial Responsibility Law
(MVFRL), 75 Pa. Cons. Stat. § 1705(a)(1), in connection with her insurance policy.9
Plaintiffs filed a complaint on September 15, 1997.~° As noted previously, in the
complaint Plaintiff Susan Lebo asserted a claim for personal injuries against the DefendantTM
and Plaintiff Ronald Lebo set out a claim for loss of consortium against the Defendant.~2
Presently before the Court is a motion for partial summary judgment filed by the
Defendant. The Defendant argues that since Plaintiff Susan Lebo, as a limited tort plaintiff,
cannot establish that she suffered a "serious injury," the Defendant is entitled to summary
judgment on the issue of recovery for noneconornic damages.~3
DISCUSSION
Motions for summary judgment are governed by Pennsylvania Rule of Civil
Procedure 1035.2, which provides 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, or
(2) if, after the completion of discovery relevant to the motion,
including the production of expert reports, an adverse party who
will bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
9 Plaintiffs' Complaint, para. 8.
~o See Plaintiffs' Complaint.
~ Plaintiffs' Complaint, para. 10-15.
~2 Plaintiffs' Complaint, para. 16-19.
~3 Defendant's Brief in Support of Her Motion for Summary Judgment, at 11.
3
which in a jury trial would require the issues to be submitted to
a jury.
In ruling on a motion for summary judgrnent, a court will "view the record in the light
most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue
of material fact must be resolved against the moving party." Erte! v. Patriot News Co., 544
Pa. 93, 97-98, 674 A.2d 1038, 1041 (1996).
The Pennsylvania Supreme Court, in Washington v. Baxter, _ Pa. _, 719 A.2d 733
(1998), recently held that this traditional standard for summary judgment is to be used in
cases involving a limited tort plaintiff who seeks to recover noneconomic damages, such as
Plaintiff Susan Lebo in the case subjudice. In so holding, the Washington Court rejected the
previously accepted approach for these types of cases, which was adopted by the Superior
Court in Dodson v. Elvey, 445 Pa. Super. 479, 655 A.2d 1223 (1995), allocatur granted, 544
Pa. 608, 674 A.2d 1072 (1996), reversed, _ Pa. _, 720 A.2d 1050 (1998).
The Dodson Court had set out the following approach for courts to utilize in
determining whether a limited tort plaintiff could recover for noneconomic damages:
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.
445 Pa. Super. 479, 494, 665 A.2d 1223, 1231 (1996). The Court further stated that, "where
the evidence conclusively established that the plaintiff has suffered 'serious impairment of
4
body function,' then the jury may decide only the issues of liability and damages." Id. at
497, 665 A.2d at 1232.14
The Washington Court concluded that the legislative history of the MVFRL, which
provided for the limited tort election, did not support such an approach. Washington, _ Pa.
at _, 719 A.2d at 740. Rather, the Washington Court indicated that "the traditional summary
judgment standard was to be followed" and that "the threshold determination" as to whether
the plaintiff could recover for noneconomic damages "should be made by the jury in all but
the clearest of cases." Id.
The factors involved in the threshold determination as to whether a limited tort
plaintiff can recover for noneconomic damages are found in Section 1705 of the MVFRL.
Section 1705 states in pertinent part that
[e]ach person who elects the limited tort alternative remains
eligible to seek compensation for economic loss sustained in a
motor vehicle accident as a consequence of the fault of another
person pursuant to applicable tort law. Unless the injury
sustained is a serious injury, each person who is bound by the
limited tort election shall be precluded from maintaining an
action for any noneconomic loss ....
75 Pa. C.S. §1705(a).
The MVFRL defines "serious injury" as "a personal injury resulting in death, serious
impairment of body functiOn or permanent disfigurement." 75 Pa. C.S.A. §1702.
Washington at _, 719 A.2d at 740.
The Defendant's motion for summary judgment argues that the Plaintiff's injury does
not constitute a "serious injury" because it was not "a personal injury resulting in death,
14 The Dodson Court sought to limit the jury's role in this respect, reasoning that "to
do otherwise would put the plaintiff to the double burden of showing 'serious impairment of
body function' twice, once to the judge and again to the jury." Dodson v. Elvey, 445 Pa.
Super. 479,494, 665 A.2d 1223, 1231 (1995), allocaturgranted, 544 Pa. 608, 674 A.2d 1072
(1996), reversed, _ Pa. _, 720 A.2d 1050 (1998).
serious impairment of body function or permanent disfigurement." While the personal injury
of Plaintiff Susan Lebo obviously did not result in death, this Court is unable to agree with
the Defendant that reasonable minds could not differ as to whether Plaintiff's injury resulted
in "serious impairment of body function" or "permanent disfigurement."
The Washington Court adopted the definition of "serious impairment of body
function" first set forth inDiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986). The
Michigan Court stated that the "serious impairment of function" threshold involved a two-
prong inquiry:
(a) What body function, if any, was impaired because of injuries
sustained in a motor vehicle accident?
(b) Was the impairment of the body function serious?
The focus of these inquiries is not on the injuries themselves,
but on how the injuries affected a particular bodily function ....
In determining whether the impairment was serious, several
factors should be considered: the extent of the impairment, the
length of time the impairment lasted, the treatment required to
correct the impairment, and any other relevant factors. An
impairment need not be permanent to be serious.
Washington at _, 719 A.2d at 740 (quotingDiFranco at 39-40, 398 N. W. 2d at 901).
The record reflects that Plaintiff Susan Lebo is a limited tort plaintiff who claims that
the injury to her forearm, sustained during her collision with the Defendant, impairs her
ability to perform a number of tasks. First, Plaintiff has alleged that her injury has prevented
her from fully attending to her usual duties as a research coordinator for McMillan &
Magargle. ~5
Second, Plaintiff has testified in a deposition that, while she is able to do some of the
things she did before the accident, she cannot do these things for an extended period of time
Plaintiffs' Complaint, para. 14.
6
and often experiences "a numbness sensation in [her] fingers and also a constant muscle type
of fatigue in [her] arm.''16 In addition, Plaintiff maintains that she has also encountered
difficulty in engaging in leisure activities with her husband that she enjoyed prior to the
accident due to her experiencing a "jarring or vibration-type" feeling in her wrist and arm
and "decreased grip-strength in her hand" in her attempts to engage in those activities. ~*
The Superior Court in Furman v. Shapiro, 721 A.2d 1125 (Pa. Super. Ct. 1998),
recently reversed the grant of a motion for summary judgment motion against a limited tort
plaintiff. In support of this reversal, the Court cited the fact that the plaintiff/appellant had,
in a manner similar to Plaintiff Susan Lebo, reduced her work status and suffered a decreased
ability to engage in activities she had participated in prior to her injury.~8
This Court, therefore, noting the existence in this case of alleged facts similar to those
in Furman, and viewing those facts in the light most favorable to the Plaintiff, believes that
reasonable minds could differ as to whether the Plaintiff's injury represented a "serious
impairment of body function." Consequently, the threshold determination as to whether
Plaintiff's injury was serious so as to allow Plaintiff to recover for noneconomic damages
should be made by the jury.
In addition, this Court is of the view that the issue of whether Plaintiff's injury
constituted "permanent disfigurement" is also one upon which reasonable minds could differ.
Based upon these conclusions, and following the traditional standard for summary judgment,
the Court holds that the issue of whether Plaintiff Susan Lebo suffered a "serious injury" for
16 Deposition, at 45.
~7 Plaintiffs' Answer to Defendant's Interrogatories, No. 14.
~8 In Furman, the Court cited the fact that the appellant reduced her work status from
full-time to part-time due to her back pain as part of its reasoning that reasonable minds
could differ as to whether appellant's injury was "serious." The Court reversed a motion for
summary judgment against the limited tort appellant/plaintiff. Furman v. Shapiro, 721 A.2d
1125, __ (Pa. Super. Ct. 1998).
7
purposes of 75 Pa. C.S.A. § 1702 is not appropriate for disposition by summary judgment.
ORDER OF COURT
AND NOW, this 23rd day of February, 1999, after consideration of Defendants'
motion for partial summary judgment, and for the reasons stated in the accompanying
opinion, the motion for partial summary judgment is denied.
BY THE COURT,
s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Eric J. Wiener, Esq.
HANDLER & WIENER
319 Market Street
P.O. Box 1177
Harrisburg, PA 17108-1177
Attorney for Plaintiffs
Thomas E. Brenner, Esq.
GOLDBERG, KATZMAN& SHIPMAN, P.C.
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendant
:rc