Mark K. Patton and Jennifer Patton, h/w, vs. Kortnae Amber Snively and Kristie Labarre No. 2014-00811

 

Civil Action-Law-Motor Vehicle Accident-Summary Judgment-Motor Vehicle Financial Responsibility Law-Insurance Coverage-Limited Tort-Serious Injury

Plaintiffs, who had elected limited tort vehicle insurance coverage, filed a Complaint in negligence against Defendants after a motor vehicle accident wherein the vehicle driven by Defendants traveled through a red light and struck the vehicle in which Plaintiffs were riding. Defendants filed a Motion for Partial Summary Judgment, asserting that Plaintiffs failed to provide evidence of the existence of serious impairment of body function or permanent disfigurement as required by law to recover damages pursuant to the limited tort vehicle insurance coverage.

1. In a motion for summary judgment, the burden is on the moving party to prove that no genuine issue of material fact exists for trial. Pa.R.C.P. Rule 1035.3(a) requires the nonmoving party to file a response to a motion for summary judgment in which sufficient evidence is adduced on an issue essential to the case and on which that party bears the burden of proof such that a jury could return a verdict in that party’s favor.

2. Under the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1701 et seq., a plaintiff may not seek recovery for pain and suffering or other non-economic damages in a motor vehicle accident if he or she has elected the limited tort option in his or her insurance policy unless he or she has sustained a serious injury. 75 Pa.C.S. § 1705(d).

3. Title 75 Pa.C.S. § 1702 defines a “serious injury” as a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.

4. When considering whether a party has sustained serious impairment of body function pursuant to § 1702, several factors should be considered 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. The focus is not on the injuries themselves, but upon how the injuries affected a particular body function. An injury need not be permanent to be considered a serious injury. Generally, medical testimony will be needed to establish the existence, extent and permanency of the impairment.

5. Summary judgment is not proper if reasonable minds could differ as to the seriousness of an individual’s injuries sustained in a motor vehicle accident under a limited tort option.

6. Summary judgment is appropriate with regard to Plaintiff Jennifer Patton since reasonable minds could not differ as to whether she sustained a serious injury as contemplated by the MVFRL when the record establishes that she did not go to the hospital on the date of the accident, first sought treatment with her chiropractor the day after the accident at a previously scheduled appointment to treat fibromyalgia and arthritis, has not been treated by her chiropractor since 2012, treated with her family doctor after the accident who failed to indicate a diagnosis as a result of the accident and is able to perform all of her pre-accident activities.

7. Summary judgment is not appropriate as to Plaintiff Mark Patton because reasonable minds could differ as to whether he sustained a serious injury as contemplated by the MVFRL when the record indicates that he was diagnosed with a fracture of the C4 vertebrae by an orthopedic provider following the accident, he lost one (1) cleaning account from his business and sold his home in Tremont due to limitations as a result of his symptoms and he indicated that he is unable to perform pre-accident activities including hiking and playing soccer.

L.C.C.C.P. No. 2014-00811, Opinion by Samuel A. Kline, Judge, January 24, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION No: 2014-00811

MARK K. PATTON and JENNIFER PATTON, h/w, Plaintiff

v.

KORTNAE AMBER SNIVELY and KRISTIE LABARRE, Defendants

ORDER

And now, to wit, this 24^th day of January, 2017, upon consideration of the Defendant’s Motion for Partial Summary Judgment, the parties’ briefs, oral argument and the record of the case, the Motion for Partial Summary Judgment is GRANTED in part and DENIED in part. The Motion for Partial Summary judgment is granted as it relates to Jennifer Patton and denied as it relates to Mark Patton.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

Stephen T. Carpenito, Esq. for the Plaintiffs

Donald R. Dorer, Esq. for the Defendants

OPINION, KLINE, J., January 17, 2017

Before the Court is Defendants Kortnae Snively and Kristie Labarre’s (hereinafter “Defendants”) Motion for Partial Summary Judgment as it relates to Mark and Jennifer Patton’s (“hereinafter “Plaintiffs”) claims for non-economic damages. For the reasons set forth herein, we grant in part and deny in part the Motion for Summary Judgment, as specified below.

FACTS AND PROCEDURAL HISTORY

The facts giving rise to Plaintiffs’ Complaint sounding in negligence and loss of consortium are as follows. Plaintiffs were in a car accident involving the Defendants, on October 24, 2011 in Lebanon City, Pennsylvania. The accident occurred when the Defendants ran a red light and struck the Plaintiffs as they were traveling through the intersection at 8^th Street and Cumberland Street. The Plaintiffs were not taken to the hospital as a result of the accident. Important to the current claim, Plaintiffs had elected for Limited Tort coverage on their car insurance policy.

The Plaintiffs filed their Complaint on or about December 13, 2013 in Schuylkill County. The Defendants raised Preliminary Objections as to the improper venue and upon stipulation the matter was transferred to Lebanon County. The Defendants filed their Answer with New Matter on September 19, 2014 and the Plaintiffs filed their Answer to the New Matter on October 14, 2014.

On June 21, 2016, a status conference was held before this Court. The Court made note in its Status Order filed on June 24, 2016, that there were serious concerns with the parties’ Limited Tort status and urged the parties to settle the matter. On October 31, 2016 the Defendants filed its Motion for Partial Summary Judgment. Briefs were filed and Oral Argument was heard by this Court on December 30, 2016. The case is thus before us and ripe for disposition.

DISCUSSION

Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which provides:

After the relevant pleadings are closed, but within such time as not to unreasonably 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 to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2. The Supreme Court of Pennsylvania has stated:

The Pennsylvania Rules of Civil Procedure governing summary judgment instruct, in relevant part, that the court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only when the right to such a judgment is clear and free from doubt.

Sevast v. Kakouras, 915 A.2d 1147, 1152-1153 (Pa. 2007) (citations omitted).

Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists.” Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). The purpose of summary judgment is to avoid unnecessary trials and to eliminate the waste of time and resources of both litigants where a trial would be a useless formality. Curran v. Children’s Service Center of Wyoming County, Inc., 578 A.2d 8 (Pa. Super. 1990). A comment to Pa.R.C.P. 1035.2 reads, “Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. See Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).”

In addition, Pa.R.C.P. 1035.3(a) requires the non-moving party to file a response to the moving party’s Motion for Summary Judgment. “[A] non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. 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.” Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1207, footnote 15 (Pa. 2009).

The Defendants argue that the Plaintiffs have failed to provide evidence that there is the existence of a “serious injury” that resulted from the car accident, through objective medical evidence, as required under the law and as further defined as a “serious impairment of body function or permanent disfigurement.” Additionally, the Plaintiffs maintain employment and participate in pre-accident activities with limitations; injuries may have been sustained but the severity of said injuries are subjective to the Plaintiffs.

Conversely, Plaintiffs argue that the determination of the existence of a serious injury resulting from the car accident is a question of fact that should be left for the trier of fact to determine. Furthermore, Plaintiff argues that they have presented enough factual information from chiropractic/medical records and depositions of the Plaintiffs to maintain the existence of a genuine issue of a material fact.

Pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law (hereinafter “MVFRL”), a plaintiff may not seek recovery for pain and suffering or other non-economic damages in a motor vehicle accident if they have elected the limited tort option in their insurance policy, unless he/she has sustained a “serious injury.” 75 Pa. C.S. § 1705(d). Section 1702 of the MVFRL defines “serious injury” as a “personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” The Pennsylvania Supreme Court has further defined “serious impairment of bodily function” as:

The serious impairment of body function threshold contains two inquiries: (a) what body function, if any, was impaired because of injuries sustained in a motor vehicle accident; and (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 to the impairment, the length of time the impairment lasted, the treatment required to correct the impairment and any other relevant factors.

Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998). Additionally, an injury does not need to be permanent to be considered as a serious impairment. Graham v. Campo, 990 A.2d 9 (Pa. Super. 2010).

The Pennsylvania Superior Court determined in Furman v. Shapiro, 721 A.2d 1125 (Pa. Super. 1998), that reasonable minds could differ as to the seriousness of the appellants’ injuries that were sustained in a motor vehicle accident and therefore, summary judgment was not proper. There, the appellant was injured in a motor vehicle accident and had elected the limited tort option for her automobile insurance. Id. at 1125-26.

Additionally, in Furman, the appellant was diagnosed with several back conditions which included a bulging disk. Id. at 1127. The back problems experienced by the appellant were permanent. Id. As a result, the appellant had difficulty maintaining full-time employment, walking more than one block, lifting objects and bathing her daughter. Id. The trial court determined that the appellant did not suffer a serious injury under the MVFRL and granted summary judgment in favor of the appellees. Id. at 1125-26. The Superior Court reversed the trial court, and in doing so, determined that due to the appellant’s medical diagnosis, the permanency of the diagnosis, the steps taken to treat the problems and the continuing limitations that the appellant experiences as a result of the diagnosis, “reasonable minds could differ as to whether Appellant suffered a ‘serious injury’” for purposes of the MVFRL. Id. at 1127.

However, in McGee v. Muldowney, 750 A.2d 912 (Pa. Super. 2000), the Pennsylvania Superior Court determined that the injuries sustained by the appellant in that case did not rise to the level of a “serious injury” as defined by the law and thus the appellant’s claims for non-economic damages were barred by the MFVRL. The appellant in McGee was taken to the hospital after a motor vehicle accident where he was diagnosed with cervical strain and sprain. McGee, 750 A.2d at 914. Ten days later the appellant sought additional medical attention, whereby he was further diagnosed with acute cervical, thoracic and lumbosacral strain and sprain, and radiculopathy of the right hand. Id.

The Superior Court ultimately upheld the trial court’s decision to grant the appellee’s motion for summary judgment. Id. at 915. Importantly, the Superior Court noted that the appellant was treated and examined “during the six months following the accident, but did not seek any medical attention during the next five and one-half years.” Id. The Superior Court stated:

[a]ppellant has failed to present objective medical evidence as to the degree of any impairment and extent of any pain suffered during the five years preceding those 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.” While appellant has established that he suffered some injuries to his back and shoulder, he has, nonetheless, failed to establish that these injuries resulted in such substantial interference with any bodily function as to permit a conclusion that the injuries have resulted in a serious impact on his life for an extended period of time. The decision, therefore, was not to be left to a jury, because “reasonable minds could not here differ on the issue of whether a serious injury had been sustained.”

Id. (quoting Washington v. Baxter, supra at 5, 719 A.2d at 740).

In the matter sub judice, this Court finds that summary judgment is appropriate as it relates to Jennifer Patton and that summary judgment is not appropriate as it relates to Mark Patton. As it relates to Jennifer Patton, the Defendant has failed to present objective medical evidence to indicate the presence of a serious injury. In her deposition, held on June 24, 2015, Jennifer Patton stated that she did not go to the hospital after the accident and that she first received medical treatment the day after the accident from her chiropractor; however, the appointment was already scheduled because she was being treated for her fibromyalgia and arthritis. (N.T. 8; Exhibit B of Defendant’s Motion for Partial Summary Judgment).

Jennifer’s pre-scheduled treatment was for pain in her shoulders and back as a result of her arthritis and fibromyalgia. Jennifer stated she had been receiving treatment by her chiropractor for her shoulder and back pain for “awhile”, but could not remember exactly how long she had been receiving treatment. (N.T. 9-10; Exhibit B of Defendant’s Motion for Partial Summary Judgment). Jennifer stated that her chiropractor told her that the accident worsened/aggravated her pre-existing conditions, but failed to provide medical documentation to support the claim. (N.T. 17; Exhibit B of Defendant’s Motion for Partial Summary Judgment). Furthermore, Jennifer stated that she is able to perform all of her pre-accident activities, albeit with some nagging pain in her shoulders and lower back. (N.T. 15, 19-20; Exhibit B of Defendant’s Motion for Partial Summary Judgment). Jennifer has not been treated by Dr. Adams, her chiropractor, since 2012. (Exhibit D).

There is no indication from the record, as it relates to Jennifer, that there is objective medical evidence showing the existence of a serious injury. Jennifer stated at her deposition that she had visited her family doctor after the accident and submitted notes from that doctor visit that failed to indicate a diagnosis as a result of the accident. (Exhibit 2 from Plaintiff’s Answer to the Motion for Partial Summary Judgment). The record reflects Jennifer’s subjective allegations of pain resulting from the accident but fails to provide some indicia of objective medical evidence to support her allegations. This court does not wish to minimize Jennifer’s pain, but from the record it is apparent that reasonable minds cannot differ as to the existence of a serious injury, or lack thereof, as defined by the MVFRL.

As it relates to Mark Patton this Court finds Summary Judgment to not be appropriate as reasonable minds could differ as to whether or not Mark has a “serious injury” as defined under the MVFRL. Mark Patton stated at his deposition that since the time of the accident, he has had to sell his house in Tremont, Pennsylvania because he could no longer maintain the house due to the pain it would cause him; however, Mark and Jennifer did not sell the house until three (3) years after the accident. (N.T. 5, 40; Exhibit A of Defendant’s Motion for Partial Summary Judgment). In addition, Mark owns his own office cleaning business that he has maintained since the time of the accident. (N.T. 9-10; Exhibit A of Defendant’s Motion for Partial Summary Judgment). However, Mark stated that he has lost two cleaning accounts after the accident and attributed the one loss to the accident. (N.T. 12; Exhibit A of Defendant’s Motion for Partial Summary Judgment). Mark stated that he had to give up the one cleaning account because his back, neck and hips bothered him too much, which he stated was a result of the accident. (N.T. 16; Exhibit A of Defendant’s Motion for Partial Summary Judgment).

The record reflects Mark first received medical treatment after the accident in the form of chiropractic care with Dr. Adams, on November 1, 2011. (Exhibit C of Defendant’s Motion for Partial Summary Judgment). The record further indicates that Mark stopped chiropractic treatment in January 2012. Id. In addition to the chiropractic treatment, Mark sought care with his family doctor who referred Mark to Dr. Shakil for an orthopaedic evaluation. (N.T. 31, 33; Exhibit A of Defendant’s Motion for Partial Summary Judgment).

Dr. Shakil determined on or about November 9, 2011, that Mark had a “small avulsion fracture of the inferior surface of C4 vertebrae.” (Exhibit 1 of Plaintiff’s Answer to the Motion for Partial Summary Judgment). Mark did not receive follow up treatment as a result of Dr. Shakil’s diagnosis, but wished to be “treated conservatively.” (N.T. 33-34; Exhibit 1 of Plaintiff’s Answer to the Motion for Partial Summary Judgment). Mark stated that from the time of the accident to the present day, he experiences a constant nagging headache that won’t go away, in addition to the aches and pains he experiences in his back, neck and hips. (N.T. 35-36; Exhibit A of Defendant’s Motion for Partial Summary Judgment). Additionally, Mark is unable to perform several pre-accident activities without pain, including hiking and playing soccer. (N.T. 39, 45; Exhibit A of Defendant’s Motion for Partial Summary Judgment). As a result of Mark’s deposition testimony and the existence of objective medical evidence, indicating the existence of a fracture, it is this Court’s belief that reasonable minds could differ as to whether or not Mark sustained a serious injury under the MVFRL.

Accordingly, summary judgment is granted as it pertains to Jennifer Patton and summary judgment is denied as it relates to Mark Patton.

1) The Defendants do not deny fault.

2) Section 1705(d) states the following in relevant part:

(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 any noneconomic loss.

75 Pa.C.S. § 1705(d).