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HomeMy WebLinkAbout2009-8853 KIM AND FRANK TUSCHAK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFFS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : KATHLEEN MARSHALL, : DEFENDANT : 09-8853 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., October 13, 2010:-- This matter stems from a motor vehicle accident that occurred on February 3, 2008, when Kimberly Tuschak (plaintiff) was attempting to merge her vehicle onto S.R. 15 south from S.R. 581 at which time she was struck in the rear by a vehicle driven by Kathleen Marshall (defendant). At the time of the accident plaintiff had an automobile insurance policy with Erie Insurance and was covered under the “limited tort” option on her policy. Procedurally, the action was commenced with plaintiffs’ filing a complaint on December 28, 2009. Defendant filed an answer with new matter on March 2, 2010. Plaintiffs filed an answer to defendant’s new matter on March 4, 2010. The pleadings and relevant discovery are closed. Defendant has filed a motion for summary judgment asking that all claims asserted against her be dismissed with prejudice by virtue of the fact that plaintiffs’ insurance coverage was pursuant to a limited tort option. Our esteemed colleague, President Judge Kevin A. Hess, addressed the identical issue in the case of Tomsa v. Conklin, No. 09-4681 Civil in an opinion dated September 21, 2010. Inasmuch as the defense counsel and conclusion of the court are the same in both cases, we will not belabor the point. In “limited tort” cases, the issue is whether “serious impairment of body function” has occurred. The Pennsylvania Supreme Court has set forth the threshold inquiries: (1) what body function, if any, was impaired because of injuries 09-8853 CIVIL TERM sustained in a motor vehicle accident; (2) was the impairment of the body function serious. Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998). Our Superior Court has elucidated several factors that must be considered to determine if the claim of injury is “serious:” (1) the extent of the impairment; (2) the length of time the impairment lasted; (3) the treatment required to correct the impairment; and (4) any other relevant factors. Graham v. Campo, 990 A.2d 9, 16 (Pa. Super. 2010). Most importantly, as President Judge Hess made imminently clear, our Supreme Court has directed that the ultimate determination as to whether a limited tort elector has sustained a serious injury should be made by a jury in all but the clearest of cases. Washington, 719 A.2d at 740. As the court was satisfied in the Tomsa case, we are satisfied in the case sub judice that reasonable minds on the jury could disagree as to whether plaintiff’s injuries constitute a serious injury. Although defendant claims that plaintiff has made a 100 percent recovery, viewing the record in the light most favorable to the plaintiff and resolving all doubt as to the existence of a genuine issue of material fact against the defendant, we are constrained to find otherwise. Distilling the facts to their fundamental essence, prior to the accident, plaintiff Kimberly Tuschak was the figurative if not literal poster child for the President’s Council on Physical Fitness. As noted in plaintiffs’ brief, “besides weightlifting, gardening, cooking, housework, and attending her son’s high school sporting events, Mrs. Tuschak was a marathon runner.” (Plaintiffs’ brief at 4). Having run 18 marathons in her lifetime, the fact that she had to stop running for six months suggests a level of physical impairment a reasonable jury could determine to be serious. This is not to discount the other facts proffered by plaintiff with respect to the seriousness of her injuries; however, the court is satisfied that when an individual who is clearly more active than 99 percent of America suffers an injury that -2- 09-8853 CIVIL TERM relegates her to being merely more active than 80 percent of America, the threshold of serious impairment has been crossed and must be determined by a jury. Accordingly, we will enter the following order: ORDER OF COURT AND NOW, this day of October, 2010, the motion of defendant for IS DENIED. summary judgment, By the Court, Albert H. Masland, J. David L. Lutz, Esquire For Plaintiffs John R. Ninosky, Esquire For Defendant :saa -3- KIM AND FRANK TUSCHAK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFFS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : KATHLEEN MARSHALL, : DEFENDANT : 09-8853 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J. AND MASLAND, J. ORDER OF COURT AND NOW, this day of October, 2010, the motion of defendant for IS DENIED. summary judgment, By the Court, Albert H. Masland, J. David L. Lutz, Esquire For Plaintiffs John R. Ninosky, Esquire For Defendant :saa