Dodson v. Elvey

• Decision Date: 28 September 1995
• Citation: 665 A.2d 1223,445 Pa.Super. 479
• Parties: Michael Timothy DODSON, Appellant, v. Frederick William ELVEY.
• Court: Pennsylvania Superior Court

Page 1223

665 A.2d 1223

445 Pa.Super. 479

Michael Timothy DODSON, Appellant, v. Frederick William ELVEY.

Superior Court of Pennsylvania.

Argued April 28, 1995.

Filed Sept. 28, 1995.

Gregory A. Olson, Indiana, for appellant.

Ralph M. Monico, Hollidaysburg, for Frederick W. Elvey.

James R. Ronca, John F. Duggan, Harrisburg, Leonard A. Sloane, Media, Amicus Curiae, for PA Trial Lawyers.

Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, BECK, KELLY, POPOVICH, HUDOCK, and SAYLOR, JJ.

BECK, Judge:

This appeal addresses whether under the "limited tort option" of Pennsylvania's Motor Vehicle Financial Responsibility Law ("MVFRL"), 75 Pa.C.S. § 1701 et seq. (Purdon Supp.1995), it is the function of the judge or the jury to make the initial determination whether a plaintiff has suffered "serious injury". We conclude that, in cases like this one, it is the function of the judge.

The limited tort option authorizes the insurer to offer automobile insurance coverage at reduced premium rates to insureds who give up the right to sue for noneconomic damages, such as pain and suffering. A limited tort elector may sue for noneconomic damages only if he or she suffers "serious injury" in an automobile accident. 75 Pa.C.S. § 1705(d).

Serious injury is statutorily defined as death, serious impairment of body function or permanent serious disfigurement. 75 Pa.C.S. § 1702. Since appellant claims he suffered "serious impairment of body function", this opinion responds mainly to the statutory standard involving that category of "serious injury," although the procedure outlined infra is certainly applicable to the statutory standard involving "permanent serious disfigurement." ¹

In the instant case the court granted summary judgment in favor of defendant-appellee Frederick William Elvey on the basis that the plaintiff-appellant Michael Timothy Dodson, who had elected the limited tort option, had not met his burden of establishing a "serious injury," i.e., serious impairment of body function. The court dismissed the action for noneconomic damages. Appellant filed this appeal, arguing that the determination of the serious impairment of body function should be a fact question for the jury, and that his injuries did indeed meet the limited tort option threshold. We affirm the trial court's grant of summary judgment in favor of appellee.

We begin by noting our scope of review in this appeal from summary judgment. Our review is plenary, and we therefore must determine whether the uncontroverted allegations of the pleadings and the other permissible materials filed in support of and in opposition to the motion reveal that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. Briggs v. Erie Ins. Grp., 406 Pa.Super. 560, 594 A.2d 761 (1991); Krause v. Great Lakes Holdings, Inc., 387 Pa.Super. 56, 563 A.2d 1182 (1989), alloc. den., 524 Pa. 629, 574 A.2d 70 (1990). See Pa.R.Civ.P. 1035(b) (the judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991); Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991).

With this standard in mind, we outline the statutory context and factual background of this particular case. Since 1990, the MVFRL requires automobile insurers to offer insurance coverage to its customers in accordance with the following "Notice to Named Insureds":

A. "Limited Tort" Option--The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of "serious injury" as set forth in the policy or unless one of several other exceptions noted in the policy applies. The annual premium for basic coverage as required by law under this "limited tort" option is $_______.

Additional coverages under this option are available at additional cost.

B. "Full Tort" Option--The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverage as required by law under this "full tort" option is $_______.

Additional coverages under this option are available at additional cost....

75 Pa.C.S. § 1705(a)(1).

In exchange for a reduced premium, appellant elected the limited tort option when purchasing automobile insurance. ² Appellant therefore is bound by the following statutory provision:

(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,.... ³

75 Pa.C.S. § 1705(d) (emphasis added). The act defines "serious injury" as "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." 75 Pa.C.S. § 1702.

Appellant sustained certain injuries when he was involved in a motor vehicle accident with appellee. Appellant filed the instant action for damages, including noneconomic damages, against appellee. ⁴ In his amended complaint, appellant claimed that he had suffered "personal injury resulting in a serious impairment of body function." The complaint further described appellant's injuries as "serious and permanent," including but not limited to "cervical strain; lumbar strain; iliopsoas strain; impingement syndrome, right shoulder; contusion, right elbow, right shoulder." Appellee, in his new matter and later motion for summary judgment, asserted that appellant had chosen the limited tort option in his insurance coverage, and therefore could not recover noneconomic damages because his injuries did not meet the "serious injury" threshold set forth by law.

In his response to the appellee's motion for summary judgment, appellant filed an affidavit with two supporting medical reports, and his own deposition testimony. After reviewing the evidence, the trial court held that it raised no triable issue of fact as to whether appellant sustained serious impairment of body function.

Appellant's accident occurred on January 11, 1992. He immediately felt pain in his low back, the back of his head, his right arm and shoulder, and developed a frontal headache secondary to a mid-forehead contusion. He was transported to the emergency room where x-rays were taken and he was given a sling for his right arm. Appellant testified that he could not use his arm throughout January 1992. Appellant did not return to his job as a warehouseman for about four months, and testified that he wore the sling "maybe the entire time [he] was off."

Appellant treated with an orthopedist, Dr. Fulchiero, who initiated hydrotherapy and diagnosed rotator cuff damage (right shoulder) and a fractured elbow. ⁵ Appellant had six office visits with Dr. Fulchiero between January 16 and May 22, 1992. Appellant's attorney referred him to a second physician, Dr. Smith, who diagnosed cervical sprain, lumbar strain, and iliopsoas strain. Appellant treated with Dr. Smith for eight visits between January 24 and August 28, 1992. At a January 24, 1992 visit, appellant had decreased range of motion secondary to muscle tightness, and limited right elbow and right shoulder range of motion. He had pain on palpation in his low back. Dr. Smith ordered moist heat and ultrasound for his back and exercises for his shoulder. On February 14, 1992, appellant's right scapula was injected with DepoMedrol and Lidocaine. A physical therapy program was instituted, involving nine treatments from April 9 until April 30, 1992.

Appellant was released to work, full duties without restriction, on May 21, 1992, with a full range of motion. His return to work resulted in "brief muscle soreness but this quickly resolved." When appellant returned to work, he had the same position with the same duties as before the accident. By July 1992, appellant complained of some elbow and forearm weakness. Examination showed some decreased strength, and he was instructed to continue with home exercises. At his August 7, 1992 visit, appellant's examination revealed full range of motion with some stiffness at the extremes of internal and external rotation. A self-protective reflex was revealed. Dr. Smith noted a slight decrease in right upper extremity strength, but there were no neurovascular deficits.

In addition, an August 12, 1992 MRI indicated "a slight increase in signal intensity in the humeral head consistent with marrow edema which is typically seen after trauma." Dr. Smith opined that this was related to a bone bruise, which would heal, and...