HomeMy WebLinkAbout92-4420 Civil HERBERT L. BUCKLEY, JR. and : IN THE COURT OF COMMON PLEAS OF
KATHRYN L. BUCKLEY, : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, and :
KATHRYN L. BUCKLEY, as :
parent and guardian of :
ERIN KENNEDY and
ANDREW KENNEDY, minors, :
Plaintiffs
: CIVIL ACTION - LAW
STEVEN DARYL CHERRY, :
Defendant
: NO. 4420 CIVIL 1992
IN RE: DEFENDANT,S MOTION FOR SU~MMARY JUDGMENT
BEFORE SHEELY p.j. and OLER j.
QRDER OF COURT
AND NOW, this ~day of September, 1994, 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,
Fred H. Halt, Esq.
200 North Hanover Street
Carlisle, PA 17013
Attorney for Plaintiffs
George F. Douglas, Jr., Esq.
27 West High Street
Carlisle, Pa 17013
Attorney for Defendant
: rc
HERBERT L. BUCKLEY, JR. and : IN THE COURT OF COMMON PLEAS OF
KATHRYN L. BUCKLEY, : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, and :
KATHRYN L. BUCKLEY, as :
parent and guardian of :
ERIN KENNEDY and :
ANDREW KENNEDY, minors, :
Plaintiffs :
:
v. : CIVIL ACTION - LAW
:
STEVEN DARYL CHERRY, :
Defendant : NO. 4420 CIVIL 1992
IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE SHEELY, P.J., and OLER, J.
OPINION and ORDER OF COURT
Oler, J.
The present case arises out of a two-car accident. Members of
a family in one car (Plaintiffs) have sued the driver of the other
car (Defendant) for personal injuries.
Defendant has filed a motion for summary judgment contending
the following: (1) that Plaintiffs have only limited tort coverage
under the Motor Vehicle Financial Responsibility Law, because the
owner of their vehicle carried no insurance and thus was deemed to
have elected the limited tort option for himself and his family;
(2) that Plaintiffs suffered no serious injuries which would permit
their recovery for noneconomic losses; and (3) that Plaintiffs
suffered no unreimbursed economic losses. For the reasons stated
in this Opinion, the Defendant's motion for summary judgment will
be denied.
Statement of Facts
The accident giving rise to this action occurred on December
12, 1990, on State Route 34 in South Middleton Township, Cumberland
County, Pennsylvania. It involved cars driven by Herbert L.
Buckley, Jr. (Plaintiff-husband), and Defendant.~ Plaintiff-
husband's car contained three passengers: Kathryn L. Buckley
(Plaintiff-wife), Defendant-husband's wife;2 and Erin Kennedy
(Erin) and Andrew Kennedy (Andrew), Plaintiff-wife's minor children
from a previous marriage, who are Plaintiff-husband's
stepchildren.3 Defendant has admitted liability for the accident.4
As a result of the accident, all four individuals in the car
Plaintiff-husband was driving were injured,s Plaintiff-husband
sustained a nondisplaced fracture of the mandible and low back
strain.~ Because of this injury, Plaintiff-husband underwent
medical treatment~ at an expense of $2985.55.7 Plaintiff-husband
contends that this amount was only partially paid for through group
Plaintiffs' Complaint, paragraph 3.
Plaintiffs' Complaint, paragraph 17.
Plaintiffs' Complaint, paragraphs 27, 34; Deposition of
Kathryn L. Buckley, January 13, 1994, N.T. 5; Deposition of Herbert
L. Buckley, Jr., January 13, 1994, N.T. 9.
4 Plaintiffs' Complaint, paragraph 5; Defendant's Answer,
paragraph 5. (Even though Defendant has admitted liability, he
denies that the collision occurred as the result of trying to pass
the vehicle in front of him, as Plaintiff alleges; instead,
Defendant contends that he applied the brakes to avoid hitting the
car in front of him and slid into the other lane as the result of
the wet condition of the road.)
See generally Plaintiffs' Complaint.
Plaintiffs' Complaint, paragraph 8.
Plaintiffs' Complaint, paragraph 9.
2
medical insurance provided by his employer,8 while Defendant
alleges that all of Plaintiffs' medical bills have been paid for.9
In addition, Plaintiff-husband contends that he lost three weeks'
wages as a result of the accident, and that these losses have not
been reimbursed by any other source.~° Plaintiff-husband was able
to return to the same job that he held prior to the accident and
suffers no residual effects of the injuries sustained therein.~
Plaintiff-wife sustained a lacerated flexor tendon in her left
arm, which is her dominant arm, that required surgical repair.~2
She also suffered head lacerations, a lacerated left leg, and
numerous bruises.~3 As a result of the injury to her arm,
Plaintiff-wife underwent four to six months of rehabilitation once
or twice a week.~4 Following termination of this rehabilitation,
Plaintiff-wife's arm is still very painful whenever the weather
changes, and she is unable to pick up anything over twenty pounds
8 Affidavit of Herbert L. Buckley, Jr., May 20, 1994,
paragraph 5.
9 Defendant's Motion for Summary Judgment, paragraph 9.
~0 Affidavit of Herbert L. Buckley, Jr., May 20, 1994,
paragraph 6.
~ Deposition of Herbert L. Buckley, Jr., January 13, 1994,
N.T. 6, 8.
~2 Plaintiffs' Complaint, paragraph 18; Affidavit of Kathryn
L. Buckley, May 20, 1994, paragraph 5.
~3 Plaintiffs' Complaint, paragraph 18.
~4 Deposition of Kathryn L. Buckley, January 13, 1994, N.T.
9.
3
with the affected arm.~ Plaintiff-wife has trouble typing since
the accident (she was employed as a secretary during her first
marriage)~6 and could not breast-feed her newborn because she was
unable to hold her.~7 She continues to wear a brace to immobilize
the arm whenever the pain and swelling become intolerable, as they
do approximately six to eight times a month.~8 Plaintiff-wife is
no longer being treated for this injury, but she was told by the
treating physician to return for treatment as necessary.~9 As for
her other injuries, the only remaining effect is some tenderness
where her left leg was lacerated.2° Plaintiff-wife's medical
expenses to date are at least $5868.00.2~ According to Plaintiffs,
Plaintiff-wife's medical expenses were only partially paid by her
spouse's insurance provided by his employer; however, Defendant
alleges that all Plaintiff-wife's medical bills were paid.22
Erin, who is thirteen years old at this time, sustained a
Id.
Deposition of Kathryn L. Buckley, January 13, 1994, N.T.
6.
Deposition of Kathryn L. Buckley, January 13, 1994, N.T.
10.
~8 Deposition of Kathryn L. Buckley, January 13, 1994, N.T.
11-12.
Deposition of Kathryn L. Buckley, January 13, 1994, N.T.
11.
Deposition of Kathryn L. Buckley, January 13, 1994, N.T.
8.
Plaintiffs' Complaint, paragraph 19.
Defendant's Motion for Summary Judgment, paragraph 9.
4
closed head injury as a result of the accident, which required an
overnight stay in the hospital.23 In addition, Plaintiffs contend
that Erin has suffered psychological trauma which has required
psychological treatment.2~ Erin was placed on medication for severe
migraine headaches by her pediatrician, Dr. Holly Hoffman.2s Erin
has also been treated for the headaches by Dr. Jacob Truxal, a
licensed psychologist.~6 According to Dr. Truxal, Erin rarely had
headaches before the accident, and the headaches occurring since
the accident have failed to respond to pain medication.~? Erin
claims that she would get the headaches approximately 3 times a
week and that they caused her to miss some school;28 however, she
feels the headaches are becoming less frequent.~9 As a result of
the injuries sustained in the accident, Erin has incurred expenses
for her medical and psychological treatment of at least $1470.00.30
It is unclear on the record whether any of these expenses have been
paid; however, as indicated previously, Defendant claims that all
23 Plaintiffs' Complaint, paragraph 28; Deposition of Kathryn
L. Buckley, January 13, 1994, N.T. 12.
Plaintiffs' Complaint, paragraphs 28, 30.
Deposition of Kathryn L. Buckley, January 13, 1994, N.T.
13.
Deposition of Erin Kennedy, January 13, 1994, N.T. 4.
Affidavit of Dr. Jacob R. Truxal, May 20, 1994, see
attached report.
Deposition of Erin Kennedy, January 13, 1994, N.T. 5.
Deposition of Erin Kennedy, January 13, 1994, N.T. 6.
Plaintiffs' Complaint, paragraph 30.
5
of Plaintiffs' medical expenses have been paid by another source.3~
Andrew, who is now nine years old, sustained facial
lacerations and a knee contusion as a result of the collision.TM
According to his mother, the injuries were just a few scrapes on
the facial area.~ As a result, Andrew incurred medical expenses
of $1,107.00.TM It is unclear on the record whether any of these
expenses were paid by insurance; however, Defendant again claims
that all of Plaintiffs' medical expenses were paid for by another
source.35
The car which Plaintiff-husband was driving on the day of the
accident was titled solely in his name.~6 This vehicle was not
insured; therefore, Plaintiff-husband, by operation of law, is
bound by the Limited Tort Alternative contained in the Pennsylvania
Motor Vehicle Financial Responsibility Law (hereinafter MVFRL).37
At the time of the accident, neither Plaintiff-wife, Erin, nor
Andrew, owned a motor vehicle, and, according to Plaintiffs, none
Defendant's Motion for Summary Judgment, paragraph 9.
Plaintiffs' Complaint, paragraph 35.
Deposition of Kathryn L. Buckley, January 13, 1994, N.T.
13.
Plaintiffs' Complaint, paragraph 36.
Defendant's Motion for Summary Judgment, paragraph 9.
Affidavit of Herbert L. Buckley, Jr., May 20, 1994,
paragraph 1.
~7 Plaintiffs' Complaint, paragraph 4; Defendant's Answer,
paragraph 4; see Act of February 12, 1984, P.L. 11, §3, as amended,
75 Pa. C.S.A. §1701 et seq. (1994 Supp.).
6
of them was an "insured," as defined in the MVFRL,38 under any motor
vehicle insurance policy.39
Plaintiffs commenced this action by filing a praecipe for a
writ of summons on December 18, 1992. This was followed by a
complaint filed on September 28, 1993. In their complaint,
Plaintiffs aver, and Defendant concurs, that since the vehicle
Plaintiff-husband was driving was uninsured and he was the sole
owner, he is, by operation of law, bound by the Limited Tort Option
contained in the MVFRL.4° However, Plaintiffs aver that since
Plaintiff-wife, Erin, and Andrew did not own a motor vehicle, and
were not insured under any motor vehicle insurance policy, their
claims are governed by the Full Tort Alternative of the MVFRL.4~
In his answer to the complaint, Defendant contends that Plaintiff-
wife, Erin, and Andrew, are bound by the Limited Tort Alternative.42
Defendant filed the said answer on November 1, 1993.
Thereafter, depositions of Plaintiff-husband, Plaintiff-wife, and
Erin were taken on January 13, 1994, and the affidavits of
Plaintiff-husband, Plaintiff-wife, and Dr. Jacob R. Truxal were
3~ See Act of February 7, 1990, P.L. 11, §7, 75 Pa. C.S.A.
S1702 (1994 Supp.).
~9 Plaintiffs' Complaint, paragraphs 15, 26, 33.
40 Plaintiffs' Complaint, paragraph 4; Defendant's Answer,
paragraph 4; See Act of February 7, 1990, P.L. 11, S8, 75 Pa.
C.S.A. §1705 (1994 Supp.).
4~ Plaintiffs' Complaint, paragraphs 15, 26, 33; see Act of
February 7, 1990, P.L. 11, ~8, 75 Pa. C.S.A. ~1705 (1994 Supp.).
42 Defendant's Answer, paragraphs 15, 26, 33; see Act of
February 7, 1990, P.L. 11, §8, 75 Pa. C.S.A. §1705 (1994 Supp.).
7
filed on May 20, 1994.
Defendant filed the motion for summary judgment presently
before the Court on April 19, 1994. Defendant again contends that
Plaintiff-wife, Erin, and Andrew are bound by the Limited Tort
Alternative.43 Additionally, Defendant alleges that the injuries
suffered by Plaintiffs do not comport with the definition of
"serious injury" found in the MVFRL.4~ Therefore, since an
individual bound by the Limited Tort Alternative is precluded from
seeking non-monetary damages or any recovery for pain and suffering
unless he or she has sustained a "serious injury,"~5 and all of
Plaintiffs' medical bills have allegedly been paid for by another
source, it is argued that Plaintiffs are precluded from seeking
damages in a tort ~action."~ Plaintiffs have conceded in their brief
and at oral argument that the injuries sustained by Andrew and
Plaintiff-husband were not "serious," as defined in the MVFRL.~7
Statement of Law
Motions for summary judqment. Pennsylvania Rule of Civil
Procedure 1035(b) provides that summary judgment "shall be rendered
if the pleadings, depositions, answers to interrogatories, and
43 Defendant's Motion for Summary Judgment, paragraph 2.
~ See Defendant's Motion for Summary Judgment, paragraphs 3-
8; see Act of February 7, 1990, P.L. 11, S7, 75 Pa. C.S.A. S1702
(1994 Supp.).
~5 See Act of February 7, 1990, P.L. 11, ~8, 75 Pa. C.S.A.
~1705(d) (1994 Supp.).
~ Defendant's Motion for Summary Judgment, paragraphs 8-9.
47 Plaintiffs' Brief in Opposition to Summary Judgment, at 5.
8
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." In this
regard, "It]he moving party has the burden of proving the
nonexistence of any genuine issue of fact." Thompson Coal Co. v.
Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979). "The
record must be examined in the light most favorable to the
nonmoving party." Schacter v. Albert, 212 Pa. Super. 58, 62, 239
A.2d 841, 843 (1968). Additionally, "[a]ll doubts as to the
existence of a genuine issue of a material fact must be resolved
against the moving party." Thompson Coal Co. v. Pike Coal Co., 488
Pa. 198, 204, 412 A.2d 466, 469 (1979). A court should grant
summary judgment "only in the clearest of cases, where the right is
clear and free from doubt." Id.
Motor Vehicle Financial Responsibility Law - Pertinent
Provisions. The MVFRL was amended in 1990.40 Under the amendment,
a person who purchases or renews a motor vehicle insurance policy
is provided with two options: the Full Tort Alternative or the
Limited Tort Alternative. See Act of February 7, 1990, P.L. 11,
§8, 75 Pa. C.S.A. §1705 (1994 Supp.) (hereinafter S1705). The
portions of §1705 applicable to the analysis of this case are as
follows:
(a)(5) An owner of a currently registered
private passenger motor vehicle who does not
have financial responsibility shall be deemed
to have chosen the limited tort alternative.
40 Act of February 7, 1990, P.L. 11, §8, 75 Pa. C.S.A. §1701,
et seq. (1994 Supp.).
9
(b)(2) The tort option elected by a named
insured shall apply to all insureds under the
private passenger motor vehicle policy who are
not named insureds under another private
passenger motor vehicle policy.
(b)(3) An individual who is not an owner
of a currently registered private passenger
motor vehicle and who is not a named insured
or insured under any private passenger motor
vehicle policy shall not be precluded from
maintaining an action for noneconomic loss or
economic loss sustained in a motor vehicle
accident as the consequence of the fault of
another person pursuant to applicable tort
law.
(c) Full tort alternative. -- Each person
who is bound by the full tort election remains
eligible to seek compensation for noneconomic
loss claimed and economic loss sustained in a
motor vehicle accident as the consequence of
the fault of another person pursuant to
applicable tort law.
(d) Limited tort alternative. -- Each
person who elects the limited tort alternative
remains eligible to seek compensation for
economic loss sustained in a motor vehicle
accident as the 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 noneconomic loss ....
(f) Definitions. -- As used in this
section, the following words and phrases when
used in this section shall have the meanings
given to them in this subsection unless the
context clearly indicates otherwise:
"Insured." Any individual residing in
the household of the named insured who is:
(1) a spouse or other relative
of the named insured; or
(2) a minor in the custody of
either the named insured or a
relative of the named insured.
10
"Named Insured." Any
individual identified by name as an
insured in a policy of private
passenger motor vehicle insurance.
Additionally, serious injury is defined as a "personal injury
resulting in death, serious impairment of body function or
permanent serious disfigurement." Act of February 7, 1990, P.L.
11, S7, 75 Pa. C.S.A. S1702 (1994 Supp.).
Rule of statutory construction. Under the Statutory
Construction Act of 1972, it is provided as follows:
When the words of a statute are clear and
free from all ambiguity, the letter of it is
not to be disregarded under the pretext of
pursuing its spirit.
Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S.A. §1921(b).
Untitled spouse as "owner" of motor vehicle under Motor
Vehicle Financial Responsibility Law. Under the Vehicle Code, of
which the MVFRL is a part, an "owner" is defined as follows:
A person, other than a lienholder, having
the property right in or title to a vehicle.
The term includes a person entitled to the use
and possession of a vehicle subject to a
security interest in another person, but
excludes a lessee under a lease not intended
as security.
Act of June 17, 1976, P.L. 162, §1, 75 Pa. C.S.A. §102. For
purposes of the MVFRL, a spouse of an owner of record of a motor
vehicle may also be considered an "owner," in appropriate
circumstances. See Allen v. Merriweather, 413 Pa. Super. 410, 605
A.2d 424 (1992); Bethez v. Pennsylvania Fin. Responsibility
Assigned Claims Plan, 407 Pa. Super. 57, 595 A.2d 122 (1991).
Determination of "serious iniury" under Motor Vehicle
11
Financial Responsibility Law. There is a paucity of Pennsylvania
appellate case law dealing with the issue of what constitutes a
"serious injury" within the context of the Limited Tort
Alternative, provided for in §1705(d) of the MVFRL; however,
several cases pertaining to this issue have 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 on this issue, looked to the State
of Michigan, whose law 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 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 Alternative pursuant to
~1705 of the Vehicle Code and was seeking noneconomic damages, the
Court denied the defendant's motion for partial summary judgment.49
Judge Allison held that the question of whether the plaintiff's
4~ But see Dodson v. Elvey, No. 92 CP 1948, June 23, 1994
(Blair Co.).
12
injuries were serious was for the jury. Id. at 9. In so holding,
the Court observed that the language of the Pennsylvania Limited
Tort amendment relating to the definition of "serious injury" was
taken verbatim from the Michigan No-Fault Insurance Act. Id. at 6.
The Court reviewed the history of case law in Michigan dealing with
the question of what is a "serious injury" within the confines of
the Michigan No-Fault Insurance Act and adopted the test set forth
in DiFranco v. Pickard, 398 N.W.2d 896 (Mich. 1986). Thus, we look
to the Michigan court for guidance on this issue.
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(1); M.S.A. ~24.13135(1).
This section effectively mirrors the Limited Tort Alternative 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". See
§1705(d). Serious injury is defined in ~1702 of the MVFRL as a
"personal injury resulting in death, serious impairment of body
function or permanent serious disfigurement."
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
13
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
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 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).
We agree with the approach taken by the Court in DiFranco,
which was followed in Becker v. Harple, 74 Lancaster L.R. 5 (1993).
Application of Law to Facts
An application of the law recited above to the facts of the
instant case leads to a conclusion that Defendant's motion for
summary judgment should not be granted. With respect to Plaintiff-
husband, it is clear that he is deemed to have elected the Limited
Tort Option. Since it is conceded by Plaintiffs that his injuries
were not serious, he may not recover for noneconomic losses;
however, a factual dispute exists as to whether he has suffered
unreimbursed economic losses.
With respect to Plaintiff-wife, she may, depending upon the
14
facts as they are developed, be found to be an owner of the motor
vehicle in question and as such deemed to have elected the Limited
Tort Option. Even if she is so bound, however, her injuries can
not, as a matter of law, be held to be not serious, so as to
preclude recovery for noneconomic losses. She still has lingering
effects of the injury to her arm, to the point where she has to
wear a brace six to eight times per month; she could not hold her
baby to breast-feed, and she now has problems typing. In addition,
a factual dispute exists as to whether she has suffered
unreimbursed economic losses.
With respect to the children Erin and Andrew, a literal
reading of the statute results in a holding that they are not bound
by the Limited Tort Alternative so as to be precluded from recovery
for noneconomic losses. As noted above, "[a]n individual who is
not an owner of a currently registered private passenger motor
vehicle and who is not a named insured or insured under any private
passenger motor vehicle policy shall not be precluded from
maintaining an action for noneconomic loss or economic loss
sustained in a motor vehicle accident as the consequence of the
fault of another person pursuant to applicable tort law.''s° This
explicit provision can not be disregarded under the pretext of
s0 Act of February 7, 1990, P.L. 11, ~8, 75 Pa. C.S.A.
~1705(b)(3) (1994 Supp.).
In addition, with regard to Erin it cannot be said as a
matter of law that her injuries were not serious. She suffered an
injury which resulted in severe migraine headaches that failed to
respond to medication and for which she sought psychological
treatment. She also missed school because of the effects of these
headaches.
15
pursuing the statute's spirit. In addition, the record is not
clear as to whether they have suffered unreimbursed economic
losses.
For these reasons, the following Order will be entered:
ORDER OF COURT
AND NOW, this ~3A~day of September, 1994, 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.
Fred H. Hait, Esq.
200 North Hanover Street
Carlisle, PA 17013
Attorney for Plaintiffs
George F. Douglas, Jr., Esq.
27 West High Street
Carlisle, Pa 17013
Attorney for Defendant
:rc
16