Kelly v. Ziolko

• Decision Date: 25 June 1999
• Citation: 734 A.2d 893
• Parties: Mark KELLY, Appellant, v. Jeffrey ZIOLKO, Cynthia Ziolko and Frank Ziolko, Jr., Appellees. (Two Cases).
• Court: Pennsylvania Superior Court

734 A.2d 893

Mark KELLY, Appellant, v. Jeffrey ZIOLKO, Cynthia Ziolko and Frank Ziolko, Jr., Appellees. (Two Cases).

Superior Court of Pennsylvania.

Argued November 6, 1997.

Filed June 25, 1999.

Gwendelynne Dell, Media, for appellant.

Paul M. Schaffer, Bethlehem, for appellees.

Before JOHNSON and HOFFMAN,¹ JJ., and CIRILLO, President Judge Emeritus.

CIRILLO, President Judge Emeritus:

¶ 1 This case is before us on remand from the Pennsylvania Supreme Court; it involves recovery of damages under provisions of the Motor Vehicle Financial Responsibility Law ("MVFRL"). The Pennsylvania Supreme Court reversed our decision affirming the trial court's order granting final judgment in favor of Appellees, Jeffrey Ziolko, Cynthia Ziolko and Frank Ziolko, Jr. Upon remand, we reverse.

¶ 2 In a memorandum decision filed December 15, 1997, we affirmed the trial court's order granting summary judgment in favor of the Ziolkos. Our decision was based, in part, upon the state of the law as enunciated in Dodson v. Elvey, 445 Pa.Super. 479, 665 A.2d 1223 (1995) (en banc ), reversed and remanded, 554 Pa. 245, 720 A.2d 1050 (1998). Subsequent to our decision, Kelly filed a petition for allowance of appeal to our supreme court which was granted. On March 23, 1998, the supreme court issued a per curiam order reversing our decision. In its order, the supreme court stated that:

The order of the Superior Court is reversed, and these matters are remanded to that court for reconsideration in light of this court's decision in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998).

In light of the supreme court order, we have reconsidered the case on the merits, and applied the holding of the Washington to Kelly's second issue on appeal.

¶ 3 On October 5, 1994, while traveling north on Schuylkill Mall Road in Schuylkill County, Kelly's vehicle collided at an unnamed cross-road with a vehicle driven by Appellee Jeffrey Ziolko. The collision occurred when Ziolko failed to obey a stop sign which was placed at the intersection. At the moment of impact, Kelly was thrown forward and up, then backwards against the seat; Kelly also struck his knees on the dashboard and his forehead on the metal strip between the roof and the windshield of his automobile. Kelly sustained injuries to his neck, lower back, and suffered numbness in his face and toes.

¶ 4 As a result of the accident, Kelly filed a complaint against the Ziolkos seeking damages, including non-economic damages, under the MVFRL. The Ziolkos, in their Answer and New Matter, alleged that because Kelly had chosen the limited tort option under his automobile insurance policy, he was not entitled to recover non-economic damages. The trial court granted a partial motion for summary judgment in favor of the Ziolkos which effectively dismissed Kelly's claims for non-economic damages. Kelly filed a notice of appeal from this order granting partial summary judgment. The court subsequently ordered that judgment be entered in favor of all defendants with regard to all claims; this court order also incorporated a stipulation between the parties that Kelly's claims for economic damages as well as all other claims against the defendants be voluntarily dismissed.

¶ 5 On appeal, Kelly presents us with the following issues for our review:

(1) Whether the trial court erred in failing to accord any effect to an insurer's violation of section 1791(b) and section 1705(a) of the Motor Vehicle Financial Responsibility Law?

(2) Whether the trial court erred in granting summary judgment to Defendants on the issue of "serious impairment of body function" where the Plaintiff sustained a herniated lumbosacral disc, where the herniation is permanent and will not improve, where the herniation permanently restricts the Plaintiff's employment capabilities, and where the Plaintiff's orthopedist continues to prescribe invasive medical treatment more than two years after the accident?

(3) Whether the trial court erred in interpreting the phrase "impairment of body function" to mean "impairment of motor function?"²

¶ 6 Our standard of review in cases of summary judgment is well settled. This court will only reverse the trial court's entry of summary judgment where there was an abuse of discretion or an error of law. Merriweather v. Philadelphia Newspapers, Inc., 453 Pa.Super. 464, 684 A.2d 137, 140 (1996). Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2, 42 Pa.C.S.A. In determining whether to grant summary judgment a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Id. Summary judgment may only be granted in cases where it is clear and free from doubt the moving party is entitled to judgment as a matter of law. Id.

¶ 7 Kelly first claims that the trial court erred by failing to acknowledge that his insurer, Nationwide Insurance Company, violated sections 1791.1(b) and 1705(a) of the MVFRL with regard to his application for automobile insurance.

¶ 8 Section 1791.1 of the MVFRL states, in part:

(b) Notice of tort options.—In addition to the invoice required under subsection (a), an insurer must, at the time of application for original coverage for private passenger motor vehicle insurance and every renewal thereafter, provide to an insured the following notice of the availability of two alternatives of full tort insurance and limited tort insurance described in section 1705(c) and (d) (relating to election of tort options):

The laws of the Commonwealth of Pennsylvania give you the right to choose either of the following two tort options:

"Limited Tort" Option—This form of insurance limits your right and the rights 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.

"Full Tort" Option.—This form of insurance allows you to maintain an unrestricted right for yourself and other 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 or other nonmonetary damages as a result of injuries covered by other drivers.

If you wish to change the tort option that currently applies to your policy, you must notify your agent, broker or company and request and complete the appropriate form.

75 Pa.C.S.A. § 1791.1(b).

¶ 9 Section 1705 of the MVFRL, which outlines the insurer's financial responsibility requirements in conjunction with an insured's election of tort options states, in relevant part:

Each insurer, not less than 45 days prior to the first renewal of a private passenger motor vehicle liability insurance policy on and after July 1, 1990, shall notify in writing each named insured of the availability of two alternatives of full tort insurance and limited tort insurance described in subsections (c) and (d). The notice shall be a standardized form adopted by the commissioner and shall include the following language:

NOTICE TO NAMED INSUREDS

"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 $ _______.

75 Pa.C.S.A. § 1705(a)(1) (emphasis added).

¶ 10 In Donnelly v. Bauer, 453 Pa.Super. 396, 683 A.2d 1242 (1996),³ affirmed, 553 Pa. 596, 611, 720 A.2d 447, 454 (1998), our court, sitting en banc, was faced with the task of interpreting these same two notice provisions of the MVFRL. Essentially, Donnelly addressed the issue of when and to whom it was necessary to give premium differentials and cost comparison information regarding the two types of insurance coverage, full and limited tort. In reaching its decision, the Donnelly court looked to the language of the applicable MVFRL provisions, examined the legislative history of the MVFRL, considered consumer protection arguments, and even went so far as to reiterate sentiments...