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HomeMy WebLinkAbout2004-1904 Civil CINDY McCLUCAS-HERMAN, Plaintiff, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. JESSICA COOK, Defendant. : NO. 04-1904 CIVIL IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and EBERT. J.J. OPINION and ORDER OF COURT EBERT, 1., November 27,2006. In this civil case, Plaintiff seeks to recover damages following injuries she allegedly sustained in an automobile accident that occurred on May 3,2002. At the time, Plaintiff s vehicle was insured under a policy in which she had selected the limited tort option. Plaintiff filed a Complaint, to which Defendant filed an Answer with New Matter. On July 20,2006, following pre-trial discovery, Defendant moved for summary judgment on the basis of Plaintiff s failure to pierce the limited tort option threshold which requires a serious impairment of a bodily function. F or the reasons stated herein, Defendant's motion for summary judgment will be granted. STATEMENT OF FACTS For purposes of Defendant's motion, the facts may be summarized as follows: Plaintiff Cindy McClucas- Herman was the driver of a motor vehicle insured under a policy issued by State Farm Insurance. Prior to the accident, Plaintiff had selected the limited tort option under that policy.l On May 3, 2002, Plaintiff was operating her motor vehicle on Route 174, Mount Holly Springs, Cumberland County, Pennsylvania, when a vehicle driven by Defendant, Jessica Cook, pulled into the intersection of Route 174 and 1 Defendant's Appendix in Support of Motion for Sununary Judgment, filed July 20,2006, Exhibit 2, Interrogatory 2(e). (hereinafter "App., Ex. _"). Petersburg Road, causing the two vehicles to collide. As a result of the collision, Plaintiff s head allegedly struck the windshield, injuring her neck, right shoulder, and lower back. She was taken to Carlisle Regional Medical Center and released and attended four appointments with a chiropractor in the two weeks following the accident. 2 Plaintiff alleges that these injuries continue to cause pain in her neck, back, arms, and legs. Since March 14,2005, she states she has been under lifting restrictions of no more than ten pounds on a constant basis and twenty pounds on an occasional basis? Plaintiff also alleges that since the accident, she has impaired functioning in her back and neck which prevent her from sitting, standing, or lying down for long periods of time. She also alleges that she can no longer enjoy the hobbies she pursued before the accident, such as baking, exercising, and dancing. Sexual activity and driving are also alleged to be difficult. At the time of the accident, Plaintiff was employed as a counter person at Mrs. Stamm's Deli. Five months after the accident, she was no longer employed at Mrs. Stamm's, which in an answer to an interrogatory she attributes to her inability to "do the necessary lifting,,,4 although in her deposition she states that her employment ended because the restaurant closed.5 She had missed only a few days of work immediately following the accident and was never under any medical restrictions related to her employment. 6 On May 6, 2002, three days following the accident, a doctor's report states that Plaintiff s condition was "improving" and that she could return to her work activities without restrictions.7 Since the accident she has been employed at Fox's Pizza in Carlisle for approximately one month in 2004, and was also employed at Wendy's Restaurant in Mechanicsburg, for approximately nine months in 2004. Neither of these employment terminations resulted from any physical impairments or limitations. 8 2 App., Ex. 2, Int. 15. 3 App., Ex. 1, Deposition of Plaintiff, pp. 62-63. 4 App., Ex. 2, Int. 18. 5 App., Ex. 1, pp. 45-46. 6 App., Ex. 2, Int. 18(b) and (22). 7 App., Ex. 3 8 App., Ex. 2, Int. 16. 2 Plaintiff currently resides in a group home and receives social security disability payments due to her diagnosis with bipolar disorder. 9 She sees a number of health professionals and the discovery material is replete with medical records of various physical and mental health afflictions. Noticeably sparse in the discovery material, however, is medical history directly related to the accident in question, such as a report of a physician who has treated her consistently since the accident, or an opinion letter from a physician stating the degree of her impairments or imposed limitations on her activities. She states in an answer to interrogatories that a Dr. Nicastro has advised her that she may incur medical expenses to treat her medical conditions in the future. Plaintiff was involved in a subsequent automobile accident, on August 21,2003, at which time she also reports there were injuries to her neck and back. Plaintiff filed her Complaint on September 10, 2004. Defendant filed her Answer to Complaint with New Matter on September 15,2004. The pleadings are closed and substantial pre-trial discovery has been conducted. On July 20, 2006, Defendant filed the motion for summary judgment, claiming that Plaintiff has failed to meet the definition of "serious injury" necessary to pierce the limited tort threshold. DISCUSSION Motion for Summary Judgment Pennsylvania Rule of Civil Procedure 1035.2 provides: After the relevant pleadings are closed, but within such time as not to umeasonably 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 9 App., Ex. 1, pp. 18, 99. 3 to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. A motion for summary judgment is only proper in those cases where the pleadings, depositions, answers to interrogatories, and admissions on file, along with the affidavits and all other matters filed on the record, demonstrate that there is no genuine issue of material fact, and that as a result the moving party is entitled to a judgment as a matter of law. Weiner v. American Honda Motor Co., 718 A.2d 305 (Pa. Super. 1998). In deciding whether summary judgment is proper, the court must construe the facts on the record in a light that is most favorable to the non-moving party. The court must also resolve all doubts and reasonable inferences as to the existence of a genuine issue of material fact in favor of the non-moving party. Telega v. Security Bureau, Inc, 719 A.2d 372 (Pa. Super. 1998). Limited Tort Exception for "Serious Impairment of Bodily Function" Plaintiff does not dispute that she elected the "limited tort" coverage under her auto insurance policy, or that she was thereby subject to S l705( d) of the Motor Vehicle Financial Responsibility Law (MVFRL) which precludes "an action for any non- economic loss" unless the injury she sustained in the accident was a "serious injury," defined in S 1702 as "a personal injury resulting in death, serious impairment of a bodily function or permanent serious disfigurement." 75 Pa.C.S. S l705( d), S 1702. In the case at bar it is undisputed that Plaintiffs injuries did not result in death or permanent disfigurement. The issue in dispute is whether or not her injuries resulted in "serious impairment of bodily function" such that the "serious injury" threshold necessary to pierce the limited tort coverage is met. In Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998), the Pennsylvania Supreme Court adopted the following two-part inquiry for determining whether a "serious impairment of bodily function" has occurred: (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 Court added, "[t]he focus of these 4 inquiries is not on the injuries themselves, but on how the injuries affected a particular bodily function." Id. The case at bar hinges on the reconciliation of this inquiry with the standard for summary judgment. Viewing the record in the light most favorable to the non-moving party, this is a plaintiff who continues to suffer numbness and tingling in her extremities and who cannot sit or stand for long periods of time. Because of injuries sustained in the accident to her neck, shoulder, and back, she can no longer enjoy many of the activities she participated in before the accident, and in fact is hindered in simple activities of daily life such as walking and sleeping without severe discomfort. However, Plaintiff lacks even one expert report or physician opinion which describes her injury in terms of serious impairment or permanency. Previously, the Superior Court ruled that judges, and not juries, could make the actual determination of "serious injury." See Dodson v. Elvey, 665 A.2d 1223, 1233 (Pa. Super. 1995). However, the Washington court rejected this approach, holding that a court should only apply traditional summary judgment standards and not make threshold determinations "unless reasonable minds could not differ on whether a serious injury had been sustained." Washington, 719 A.2d at 740. This approach results in summary judgment being denied in "all but the clearest of cases." Id. The Court went on to state that, "[g]enerally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment," and went on to list a number of factors to be considered in determining whether the impairment was serious, including the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. Id. Two Superior Court cases are instructive in this determination of whether summary judgment is appropriate in this case. In Furman v. Shapiro, 721 A.2d 1125 (Pa. Super. 1998), the Superior Court denied a motion for summary judgment on similar, but clearly more serious, facts. The record in that case reflected a limited tort plaintiff who was diagnosed with several back conditions, including a bulging disc, which was confirmed by an MRI test. The plaintiff claimed that this injury impaired her ability to perform certain tasks, such as walking more than a block at a time, bathing her daughter, 5 and lifting heavy objects, and that this impairment continued at the time of her deposition, nearly three years from the date of the accident. She continued her work as a manicurist after the accident but reduced her hours from full to part-time because of her inability to remain in one position for an extended period of time. Steps taken to treat her condition included one year of physical therapy and home exercises. Id. at 1127. Notably, the plaintiffs doctor had described her condition as permanent. Id. Applying the Washington standard and also the traditional summary judgment standard, the court concluded that reasonable minds could differ as to whether the plaintiff had suffered a "serious injury" for purposes of the limited tort threshold. In McGee v. Muldowney, 750 A.2d 912 (Pa. Super. 2000), the Court granted summary judgment where it found that the appellant, following an automobile accident, was treated on several occasions during the six months following the accident, but did not seek any medical attention during the next five and one-half years leading up to the time of the summary judgment motion. During that time, the appellant was also employed full-time in a trade. In granting the motion for summary judgment, the court found that "appellant has failed to present objective medical evidence as to the degree of impairment and extent of any pain suffered during the five years preceding [the] answers to the motion for summary judgment. The subjective allegations presented by appellant, in the absence of objective medical evidence, do not permit a finding that appellant suffered the requisite 'serious injury. ", Id. at 915. These two cases are most obviously distinguished on the Washington requirement of medical testimony in order to meet the "serious injury" threshold. Like the plaintiff in McGee, this Plaintiff has failed to present objective medical evidence as to the degree of impairment or pain suffered. While this Court declines to read Washington as requiring medical testimony in all cases to meet the "serious injury" threshold, in this case the Plaintiff has offered nothing but her own subjective allegations, which under McGee are not enough to permit a finding of the requisite "serious injury." Under this, and the traditional summary judgment standard, this Court finds that reasonable minds could not differ as to whether Plaintiff suffered a "serious injury" for purposes of 75 Pa.C.S. S 1702, 6 making summary judgment an appropriate action. Accordingly, the following order shall be entered. ORDER OF COURT AND NOW, this 27th day of November, 2006, upon consideration of Defendant's motion for summary judgment, and for the reasons stated in the accompanying opinion, the motion is GRANTED. BY THE COURT, M.L. Ebert, Jr., 1. Marcus A. McKnight, III, Esq. Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013 Attorney for Plaintiff Brigid Q. Alford, Esq. Boswell, Tintner, Piccola & Alford 315 North Front Street P.O. Box 741 Harrisburg, P A 17108 Attorney for Defendant 7