McCloskey v. Westfield Ins. Co.

• Decision Date: 18 November 2016
• Docket Number: CIVIL ACTION NO. 15-6210
• Parties: ANDREW MCCLOSKEY et al., Plaintiffs, v. WESTFIELD INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

ANDREW MCCLOSKEY et al., Plaintiffs, v. WESTFIELD INSURANCE COMPANY, Defendant.

CIVIL ACTION NO. 15-6210

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NOVEMBER 18, 2016

MEMORANDUM OPINION

RUFE, J.

Before the Court is the Motion for Summary Judgment of Defendant Westfield Insurance Company (Doc. No. 18), the insurer of Plaintiffs Andrew and Jenny McCloskey.¹ Defendant argues that Plaintiffs elected a "limited-tort option" that prevents them from recovering non-economic damages under their insurance policy unless one of them suffers a "serious injury," and cannot show that Mr. McCloskey suffered such an injury in a 2013 car accident. For the reasons that follow, the motion is denied.

I. BACKGROUND

On September 9, 2013, Mr. McCloskey was driving when he collided with an intoxicated driver, Stephen Aigeldinger, at a speed of approximately 20-30 miles per hour.² Mr. McCloskey believes that he lost consciousness on impact,³ but was able to extricate himself from the vehicleand was found sitting by the side of the road by the responding medical team, to whom he reported as his chief complaint that his "arm fe[lt] weird."⁴ Mr. McCloskey was then taken to Bryn Mawr Hospital for an evaluation.⁵ According to the "History of Present Illness" report prepared that day, Mr. McCloskey had "no numbness, dizziness, loss of vision . . . . No difficulty breathing, weakness, headache, nausea or abdominal pain. No vomiting."⁶ The report also stated that Mr. McCloskey's head was "non-tender," had "[n]o swelling," and "[n]o Battle's sign or raccoon eyes."⁷ And contrary to Mr. McCloskey's recollection, the report stated that he suffered "no loss of consciousness" during the accident.⁸ Mr. McCloskey was discharged the same day in "good" condition, and reported his "pain level on departure as 1 [out of] 10."⁹

Three days later, on September 12, 2013, Mr. McCloskey sought treatment from his primary physician, Dr. Matthew Miller.¹⁰ For the most part, Dr. Miller's report was consistent with the prior documentation of Mr. McCloskey's injuries, and Dr. Miller found "[n]o severe dizziness, new hearing loss . . . eye pain or blurred vision" and reported that Mr. McCloskey "denied significant depression, anxiety, [and] insomnia."¹¹ However, Dr. Miller also diagnosed Mr. McCloskey with "Postconcussion syndrome - primary," and reported that Mr. McCloskey had been "feeling fog[g]y and sl[ightly] dizzy" since his discharge.¹²

Mr. McCloskey then began seeking treatment for cognitive issues, including headaches, dizziness, short term memory loss, fatigue, insomnia, depression, and blurred vision—symptoms that one of Plaintiffs' proposed experts, Dr. Rhee, attributes to a concussion Mr. McCloskey sustained in the accident.¹³ The McCloskeys have testified that these symptoms have worsened over the past three years, and have taken a toll on Mr. McCloskey's work and personal life.¹⁴ In particular, Mr. McCloskey's work as a financial advisor has become more difficult for him, as he has difficulty concentrating, and has missed "at least one month" of work due to his injuries.¹⁵ Mr. McCloskey has also been forced to cut back on social and community activities. Specifically, he has resigned as Chairman of the Board of Waldron Mercy Academy, withdrawn from the Board of Governors of his alma mater, and limited his volunteer work and business development efforts.¹⁶ Mr. McCloskey's depression has strained his relationship with his wife as well, as he can become irritable, has difficulty taking care of their children, and sometimes stays in bed for up to twenty-four hours at a time.¹⁷

As Mr. McCloskey's symptoms persisted, the McCloskeys pursued a lawsuit against Aigeldinger, the intoxicated driver, in state court. That case settled for $100,000 in April 2015, the full value of Aigeldinger's insurance policy.¹⁸ The McCloskeys believed that this did not fully compensate them for Mr. McCloskey's injuries, however, and filed an underinsuredmotorist claim with Defendant for $500,000, alleging that the above problems stemmed from Mr. McCloskey's accident and were covered by their insurance policy.¹⁹ After some back-and-forth, Defendant denied Plaintiff's claim, and Plaintiff filed suit in the Court of Common Pleas of Philadelphia, bringing claims for breach of contract, bad faith, and loss of consortium.²⁰ Defendant then removed the case to federal court, alleging diversity jurisdiction under 28 U.S.C. § 1332.²¹ Defendant now moves for summary judgment, arguing that the limited-tort option bars coverage.

II. LEGAL STANDARD

A court will award summary judgment on a claim or part of a claim where there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."²² A fact is "material" if resolving the dispute over the fact "might affect the outcome of the suit under the governing [substantive] law."²³ A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."²⁴

In evaluating a summary judgment motion, a court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor.²⁵ Further, a court may not weigh the evidence or make credibility determinations.²⁶ Nevertheless, the party opposing summary judgment must support each essential element of the oppositionwith concrete evidence in the record.²⁷ "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."²⁸ This requirement upholds the "underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense."²⁹ Therefore, if, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate.³⁰ "In a diversity case, when faced with a motion for summary judgment, the federal courts follow federal law on issues of procedure but apply the substantive rule of decision from state law."³¹

III. DISCUSSION

The parties agree that Pennsylvania substantive law governs this dispute. Under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), "drivers can choose to be insured under a 'limited tort' plan or a 'full tort' plan."³² "Under the limited tort option, consumers, in exchange for a lower premium, generally waive their right to maintain an action for any noneconomic loss except, inter alia, in the case of a 'serious injury.'"³³ Plaintiffs, having selected the limited-tort option in their policy with Defendant, must be able to show that Mr. McCloskey sustained a "serious injury," which the MVFRL defines as "[a] personal injuryresulting in death, serious impairment of body function or permanent serious disfigurement."³⁴ Because Plaintiffs do not allege that Mr. McCloskey suffered death or permanent serious disfigurement, the Court considers only whether Plaintiffs can show that he suffered a "serious impairment of body function."

The key case on determining any kind of serious injury in the summary judgment context is Washington v. Baxter.³⁵ In Washington, the Pennsylvania Supreme Court carefully examined the text and legislative history of the MVFRL, and concluded that the determination of whether a plaintiff had suffered a serious injury "was not to be made routinely by a trial court judge . . . but rather was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained."³⁶ The court then affirmed a grant of summary judgment for the defendant, finding that the plaintiff had not suffered a serious injury to his foot during a car crash because the "only aspect of [plaintiff's] life to which [plaintiff] could point to as being changed as a result of the accident was that he could no longer use a lawn mower that had to be pushed, but instead [had to] use a riding mower."³⁷ The court explained that this limitation was too minor to support a conclusion that the plaintiff had suffered a serious impairment of body function, and that the plaintiff therefore had failed to put forward evidence sufficient to bring the case to a jury.³⁸

Defendant argues that here, like in Washington, Plaintiffs have failed to produce sufficient evidence to show that Mr. McCloskey suffered a serious injury. There are two problems with this argument: first, it would require the Court to resolve factual disputesregarding the extent of Mr. McCloskey's injuries, contrary to Federal Rule of Civil Procedure 56; second, unlike in Washington, reasonable minds could differ as to whether Mr. McCloskey suffered a serious injury based on the current record.

A. The Court Cannot Resolve Factual Disputes on a Summary Judgment Motion

First, summary judgment is inappropriate because the record is rife with material factual disputes regarding the extent and effect of Mr. McCloskey's injuries. Although few federal courts have decided a summary judgment motion under Washington, it is clear that as a threshold matter, the Court "must first determine whether under federal law a genuine dispute of material fact exists regarding the injuries and impairments alleged" before considering whether Plaintiffs can show a serious injury under the MVFRL.³⁹

Here, the parties dispute even the most basic material facts, including whether Mr. McCloskey suffered a brain injury at all. Plaintiffs claim that he did,⁴⁰ whereas Defendant argues that Mr. McCloskey's symptoms are either exaggerated or attributable to factors other than the accident, such as general anxiety.⁴¹ The parties have submitted dueling expert reports on this issue,⁴² and the Court cannot weigh this competing testimony on a summary judgment motion.⁴³

The parties also dispute the extent to which Mr. McCloskey's alleged brain injury has affected his professional life. Plaintiffs have testified that Mr. McCloskey missed at...