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Home My WebLink About94-2367 Civil LOUISE E. SCHINTZ and : IN THE COURT OF COMMON PLEAS OF JAMES J. SCHINTZ, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CARRIE L. TOWNSEND, : Defendant : CIVIL ACTION - LAW JAMES J. SCHINTZ, : Additional Defendant : NO. 94-2367 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY, P.J., and OLER, J. ORDER OF COURT AND NOW, this 2~day of April, 1995, upon consideration of Defendant's Motion for Summary Judgment, and for the reasons stated in the accompanying Opinion, the motion is DENIED· BY THE COURT, J...' ~esley Oler, ~, J. ' ~ Dale E. Anstine, Esq. Thomas P. Lang, Esq. 2 West Market Street P.O. Box 952 York, PA 17405 Attorneys for Plaintiff Peter D. Solymos, Esq. 110 South Northern Way York, PA 17402 Attorney for Defendant Karl R. Hildabrand, Esq. Mellon Bank Building 111 Market Street P.O. Box 93 Harrisburg, PA 17108-0093 Attorney for Additional Defendant LOUISE E. SCHINTZ and : IN THE COURT OF COMMON PLEAS OF JAMES J. SCHINTZ, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. : CARRIE L. TOWNSEND, : Defendant : CIVIL ACTION - LAW : : JAMES J. SCHINTZ, : Additional Defendant : NO. 94-2367 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY, P.J., and OLER, J. OPINION and ORDER OF COURT Oler, J. This negligence action arises out of an automobile accident which occurred in Cumberland County in 1992. For disposition at this time is a motion for summary judgment filed by Defendant. Defendant's motion is based on the statutory preclusion of an action for noneconomic loss in a motor vehicle accident by a person bound by a "limited tort election" with respect to his or her motor vehicle liability insurance policy. Act of February 7, 1990, P.L. 11, ~8(d), 75 Pa. C.S. ~1705(d) (1994 Supp.). For the reasons stated in this Opinion, the motion for summary judgment will be denied. STATEMENT OF FACTS On December 27, 1992, Plaintiff Louise E. Schintz was a passenger in a car being driven by her husband. The car was owned by her and her husband. They had elected the limited tort option on their motor vehicle liability insurance policy. NO. 94-2367 CIVIL TERM The Schintz vehicle collided with a car being driven by Defendant, in the vicinity of the Carlisle Plaza Mall. Although Mr. Schintz was apparently not injured, Plaintiff Louise E. Schintz allegedly suffered a broken sternum. In answers to interrogatories submitted to her by Defendant on May 20, 1994, Ms. Schintz maintained that she still suffered physical effects from the accident: Pain in back, shoulders, left arm and chest, fatigue and shortness of breath. I am unable to attend to cooking, cleaning, laundry and household and marital functioning. Defendant's motion for summary judgment as to the claim of Plaintiff Louise E. Schintz for pain and suffering and other noneconomic damages, inter alia, and as to the claim of her husband for loss of consortium was filed on January 31, 1995.~ The matter was argued on Wednesday, April 19, 1995. Briefs were submitted by Plaintiffs and Defendant, but for an unexplained reason Defendant's counsel did not appear at the argument. DISCUSSION Without regard to the waiver of a motion which is implied by a moving party's failure to appear for argument, in the present ~ A husband's claim for loss of consortium is derivative with respect to his spouse's claim. See Kryeski v. Schott Glass Technologies, Inc., 426 Pa. Super. 105, 626 A.2d 595, appeal denied, 536 Pa. 643, 639 A.2d 29 (1993). For purposes of ruling upon Defendant's motion for summary judgment, the analysis undertaken in this Opinion of the viability of the claim of Plaintiff Louise E. Schintz will be dispositive of the issue of the viability of the claim of Plaintiff James J. Schintz. 2 NO. 94-2367 CIVIL TERM case Defendant's motion for summary judgment would also not be sustainable on the merits. On a motion for summary judgment, "[t]he moving party has the burden of proving the nonexistence of any genuine issue of fact,"2 "[a]ll doubts as to the existence of a genuine issue of material fact must be resolved against the moving party,-3 and a court should grant summary judgment "only in the clearest of cases, where the right is clear and free from doubt.,,4 Under the Motor Vehicle Financial Responsibility Law, it is provided that, [u]nless [an] injury sustained [in a motor vehicle accident as the consequence of the fault of another person] 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 .... Act of February 7, 1990, P.L. 11, ~8(d), 75 Pa. C.S. §1705(d) (1994 Supp.). A "serious injury" is defined as "[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." Id., ~3, 75 Pa. C.S. ~1702. There is a paucity of Pennsylvania appellate case law dealing with the issue of what constitutes a "serious injury" in this context. However, several cases pertaining to the issue have 2 Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979). ~ Id. at 204, 412 A.2d at 469. 4 Id. 3 NO. 94-2367 CIVIL TERM recently been decided in the common pleas courts of other counties. Judge Gilmore of the Court of Common Pleas of Washington County, noting the lack of Pennsylvania appellate authority, looked to the State of Michigan (the law of which was generally followed in drafting the provisions in question in the Pennsylvania MVFRL), to determine that the question of whether injuries are "serious" is a threshold question for the court. Kuma v. Carly, 73 Washington County Reports 72, 74 (1992). In denying the defendant's motion for summary judgment, the Washington county court held that a plaintiff who sustained no observable injuries except for some soft tissue injuries and was treated by several doctors and a chiropractor for a period of 6 months, had met that threshold and the issue was to be decided by a jury. Id. In Becker v. Harple, 74 Lancaster L.R. 5 (1993), a case in which the plaintiff, injured in an automobile accident with the defendant, had chosen the limited tort option and was seeking noneconomic damages, the court denied the defendant's motion for partial summary judgment,s Judge Allison held that the question of whether the plaintiff's'injuries were serious was for the jury. Id. at 9. In so holding, the Lancaster county court observed that the language of the Pennsylvania limited tort amendment relating to the definition of "serious injury" was taken verbatim from the ~ But see Dodson v. Elvey, No. 92 CP 1948, June 23, 1994 (Blair Co.). 4 NO. 94-2367 CIVIL TERM Michigan No-Fault Insurance Act. Id. at 6. The court reviewed the history of case law in Michigan dealing with the question of what constituted a "serious injury" within the context of the Michigan No-Fault Insurance Act and adopted the test set forth in DiFranco v. Pickard, 398 N.W.2d 896 (Mich. 1986). According to Michigan law, "[a] person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance or use of a motor vehicle only if the injured person suffered death, serious impairment of body functions, or permanent serious disfigurement." M.C.L. ~500.3155(a); M.S.A. ~24.13135(1). This section effectively mirrors the limited tort opinion in the Pennsylvania MVFRL, which provides that a person cannot recover for noneconomic losses suffered in a collision unless it can be shown that the injury sustained was a "serious injury," and also mirrors the Pennsylvania definition of "serious injury." The Michigan Supreme Court, in DiFranco v. Pickard, 398 N.W.2d 896 (Mich. 1986), set forth the standard for determining what constituted a serious bodily impairment which would allow a person to recover noneconomic damages under the provisions of Michigan law cited in the previous paragraph. The court held that "[t]he question whether the plaintiff suffered a serious impairment of body function must be submitted to the trier of fact whenever the evidence would cause reasonable minds to differ as to the answer. This is true even where there is no material factual dispute as to NO. 94-2367 CIVIL TERM the nature and extent of the plaintiff's injuries." DiFranco v. Pickard, 398 N.W.2d 896, 900 (Mich. 1986). The DiFranco court upheld several decisions of the Michigan Court of Appeals holding that the jury should normally decide whether the plaintiff suffered a serious impairment of body functions; however, in certain instances, where the injury was "so minor" or of a "clearly superficial nature," and "it can be said with certainty that no reasonable jury could view a plaintiff's impairment as serious," summary judgment should be granted to the defendant. DiFranco v. Pickard, 398 N.W.2d 896, 906-07 (Mich. 1986). This Court has adopted the approach taken by the Michigan Court in DiFranco, and followed in Becket, in the case of Buckley v. Cherry, No. 4420 Civil 1992 (September 23, 1994). In Buckley, the Court denied a defendant's motion for summary judgment based upon a lack of serious injury, where the plaintiff had sustained a lacerated flexor tendon of the left arm, requiring surgical repair, and thereafter experienced occasional residual pain and a decreased weight-lifting capacity. In the present case, Plaintiff Louise E. Schintz allegedly suffered a broken bone in a 1991 accident, and allegedly continued to suffer significant residual effects of her injury in 1994. Given these allegations, the Court, as in Buckley, can not say with certainty, and as a matter of law, that no reasonable jury could view her impairment as serious. Therefore, the following Order 6 NO. 94-2367 CIVIL TERM will be entered: ORDER OF COURT AND NOW, this Z~day of April, 1995, upon consideration of Defendant's Motion for Summary Judgment, and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Dale E. Anstine, Esq. Thomas P. Lang, Esq. 2 West Market Street P.O. Box 952 York, PA 17405 Attorneys for Plaintiff Peter D. Solymos, Esq. 110 South Northern Way York, PA 17402 Attorney for Defendant Karl R. Hildabrand, Esq. Mellon Bank Building 111 Market Street P.O. Box 93 Harrisburg, PA 17108-0093 Attorney for Additional Defendant :rc 7