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HomeMy WebLinkAbout96-6873 CivilCARLA D. FISHEL and TED L. FISHEL, her husband, Plaintiffs VS. CAREY C. WELSH, Defendant IN THE COURT OF COMMON. PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 96-6873 CIVIL JURY TRIAL DEMANDED IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, this BEFORE BAYLEY AND HESS, JJ. ORDER ~ ~.. -'~ day of December, 1998, the motion of the defendant for summary judgment is DENIED. Joseph J. Dixon, Esquire For the Plaintiffs Jack M. Hartman, Esquire For the Defendant :rim BY THECOURT, Kevi~32~. Hess, J. CARLA D. FISHEL and TED L. FISHEL, her husband, Plaintiffs VS. CAREY C. WELSH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 96-6873 CIVIL JURY TRIAL DEMANDED IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER This matter arises out of a motor vehicle accident on February 6, 1993. The plaintiff, Carla D. Fishel, had a limited tort coverage policy. Under that policy, the plaintiff is precluded from recovering non-economic damages unless there is "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." 75 Pa.C.S. Sec. 1702. The defendant, Carey C. Welsh, has filed for summary judgment, claiming that this court should determine that the plaintiff's injuries do not reach the threshold of serious injury as a matter of law. The standard for summary judgment was clearly stated recently in the Pennsylvania Supreme Court's decision in Washington v. Baxter: In examining this matter, as with all summary judgment cases, we must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issues of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303 (Pa. 1992). In order to withstand a motion for summary judgment, a non-moving party "must adduce sufficient evidence on an issue essential to his case and an which he bears the burden of proof such that a jury could return a verdict in his favor. 96-6873 CIVIL Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). Finally, we stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Washington v. Baxter, 1998 WL 751456 (Pa. 1998). We apply this standard to the case at bar. In limited tort cases such as this one, the question is whether the plaintiff's injuries are of a nature that under the Motor Vehicle Financial Responsibility Law (hereafter "MVFRL") the plaintiff can recover non-economic damages. In the past this has been referred to as the "serious injury threshold." Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223. The defendant, in moving for summary judgment, relies on the Superior Court's reasoning in Dodson v. Elvey. The Pennsylvania Supreme Court recently addressed the Dodson decision in Washington v. Baxter and rejected much of the Dodson reasoning. Washington v. Baxter, 1998 WL 751456 (Pa. 1998). The Washington decision analyzed the history of the MVFRL and its intent. Washington at 5. The court examined whether the legislature intended to leave the "serious injury" determination to the trial judge as a matter of law or to a jury as a question of fact. Id at 6. The court looked at two attempts by the legislature to include as part of the statute's language a provision that would have made the serious injury determination a matter of law, and concluded that "both houses of the General Assembly considered making the issue of whether there had been a serious injury a purely legal determination which could be resolved only by a trial court, and specifically rejected placing such a requirement into Act 6." Id at 6. The court decided, 2 96-6873 CIVIL given that the legislature flatly rejected making the determination a matter of law, that the decision should be "left to a jury unless reasonable minds could not differ on the issue of whether serious injury had been sustained." Id at 6. The Pennsylvania Supreme Court stated in no uncertain terms that "the ultimate determination should be made by the jury in all but the clearest of cases." Id at 6. The court then defined what constituted a serious bodily injury: The "serious impairment of body function" threshold contains two inquiries: a) What bodily 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 body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment .... 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. Id at 6. Viewing the facts in light of the Washington standard, and viewing those same facts in the light most favorable to the non-moving party, we find that the defendant's motion for summary judgment lacks merit. Using the definition of serious permanent injury stated in Washington, we find that this case is not clear enough to determine the question as a matter of law. The plaintiff contends that she suffered serious permanent injury in her right hand and in her neck and head area. The plaintiff offered medical evidence that her injuries were permanent 96-6873 CIVIL and, to some extent, disabling. That medical testimony leaves an issue of material fact that must, as a matter of law, be left for a finder of fact to decide. In light of this, we deny the defendant's motion for summary judgment. AND NOW, this .ea~ for summary judgment is DENIED. ORDER day of December, 1998, the motion of the defendant Joseph J. Dixon, Esquire For the Plaintiffs Jack M. Hartman, Esquire For the Defendant BY THE COURT, .~/~. Hess, J. :rim