McNair v. Farris

• Decision Date: 21 August 1997
• Docket Number: No. 960567-CA,960567-CA
• Citation: McNair v. Farris, 944 P.2d 392 (Utah App. 1997)
• Parties: 324 Utah Adv. Rep. 9 Leslie Scot McNAIR, Plaintiff and Appellant, v. Daniel FARRIS, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 392

944 P.2d 392

324 Utah Adv. Rep. 9

Leslie Scot McNAIR, Plaintiff and Appellant, v. Daniel FARRIS, Defendant and Appellee.

No. 960567-CA.

Court of Appeals of Utah.

Aug. 21, 1997.

Lynn P. Heward, Salt Lake City, for Appellant.

Joseph J. Joyce and Kristin A. VanOrman, Salt Lake City, for Appellee.

Before DAVIS, WILKINS and BILLINGS, JJ.

DAVIS, Presiding Judge:

Appellant Leslie Scot McNair challenges the trial court's entry of summary judgment in favor of appellee Daniel Farris. We affirm.

BACKGROUND

" 'Before we recite the facts, we note that in reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. We state the facts in this case accordingly.' " Lopez v. Union Pac. R.R. Co., 932 P.2d 601, 602 (Utah 1997) (quoting Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993)).

On October 10, 1994, Farris drove his vehicle over McNair's foot, fracturing McNair's third and fourth metatarsals. One week later, McNair filed a complaint against Farris seeking $200,000 in damages for "(a) Fracture of bones in left foot[;] (b) Injury to soft tissues in left foot and ankle[;] (c) Permanent disability[;] (d) Pain and suffering, both mental and physical, past and future[;] (e) Medical bills, past and future[; and] (f) Loss of earnings and earning capacity." On March 17, 1995, and again on September 15, 1995, McNair filed certificates of readiness for trial which stated, inter alia,

1. That all required pleadings have been filed and the case is at issue as to all parties.

2. That counsel has completed all discovery; that opposing counsel have had reasonable time to pursue discovery; and that all discovery of record has been completed.

3. That if medical testimony is contemplated or required, copies of all existing medical reports have been made available to all counsel or parties of record.

4. That there are no motions that have been filed which remain pending and upon which no disposition has been made.

5. That reasonable discussions to effect settlement have been pursued by counsel and their clients but no settlement has been effected.

The trial was then scheduled for December 11, 1995.

On November 20, 1995, Farris filed a motion for summary judgment with a supporting memorandum. Farris's memorandum noted the October 10 accident and stated that McNair "has sought coverage from his personal injury protection (PIP) carrier under the Utah No-Fault Act for his alleged injuries." Also, Farris noted that McNair's medical expenses incurred as a result of the October 10 accident totaled $1222.20. To support his memorandum, Farris cited the Affidavit of Ernest Rodriguez, a State Farm Insurance claims adjustor, which affirms that McNair's claims for medical expenses filed against his no-fault insurance total $1222.20. Farris asserted that he was "entitled to judgment as a matter of law" because the undisputed total medical expenses suffered by McNair failed to meet the $3000 threshold necessary under Utah's No-Fault Act, Utah Code Ann. § 31A-22-309(1)(e) (1994), ¹ and because McNair's injuries did not constitute a "serious impairment of bodily function."

McNair's counsel filed a Motion for Continuance of Trial Date on November 27, 1995, alleging "the whereabouts of [McNair] [have] become unknown to counsel." In his supporting memorandum, McNair's counsel cited his own affidavit, which stated:

[I] contacted ... Dr. Ross Jarrett [and he] informed [me] that if [McNair] could be sent in for a medical exam, that the office would answer the question as to whether or not [McNair's] injuries have resulted in permanent impairment.... [E]fforts to locate [McNair] to instruct him to make contact with the above medical office have been unsuccessful.

In response, Farris filed an objection to the motion for continuance and a request for decision. On December 8, 1995, three days before the scheduled trial date, the trial court held a pretrial conference. At the conference, McNair's counsel noted that he had been "unable to locate the plaintiff" to arrange a medical exam to determine "whether or not there is a permanent impairment based on objective findings." Also, McNair's counsel conceded that he had not yet secured a doctor to testify at trial. Thereafter, the trial court denied McNair's motion for continuance and granted Farris's motion for summary judgment.

On December 15, 1995, McNair filed an objection to the trial court's December 8th rulings and argued:

It is entirely possible that [McNair] may seek further medical care in the future taking him over $3,000.00 in medicals as allowed by the personal injury protection coverage for treatment of conditions caused by the accident in question. It is possible that said treatment could involve surgery which would automatically cause permanent disfigurement; and it is possible that further examinations may reveal permanent disability or impairment. Should one of these possibilities happen, it would be grossly unfair for [McNair], within one year of dismissal, not to be able to refile his lawsuit and then comply with the threshold requirement. The Court can avoid such an injustice merely by dismissing [McNair's] Complaint without prejudice.[ ²

The trial court denied McNair's objection on December 29, 1995, and again granted, with prejudice, Farris's motion for summary judgment. Thereafter, on February 23, 1996, the trial court denied McNair's Motion for New Trial and To Set Aside Judgment, filed on January 9, 1996. This appeal followed.

ISSUES AND STANDARD OF REVIEW

McNair raises two issues: (1) whether the trial court correctly granted Farris's motion for summary judgment where Farris, as the moving party, failed to "carry his burden of proving there was no genuine issue regarding the no-fault threshold," and (2) whether the trial court correctly dismissed McNair's complaint with prejudice.

"Summary judgments present for review conclusions of law only, because, by definition, summary judgments do not resolve factual issues. Thus, we accord no deference to the trial court, but review its conclusions for correctness." Jepson v. State Dep't of Corrections, 846 P.2d 485, 486 (Utah.Ct.App.1993) (citations omitted).

ANALYSIS

1. Propriety of Summary Judgment

McNair contends that the trial court erred in granting Farris's motion for summary judgment because, as the moving party, Farris failed to meet his initial burden of "provid[ing] the court with an affidavit to show that there was no permanent disability." The Utah Rules of Civil Procedure provide, in relevant part, "[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." Utah R. Civ. P. 56(b). The unambiguous language of Rule 56(b) clearly does not require Farris to support his motion for summary judgment with any affidavits.

Though he concedes that he failed to meet the medical expenses threshold of section 31A-22-309(1)(e), McNair nonetheless asserts that Farris failed to show that there were no genuine issues of material fact. McNair's argument hinges on the language of section 31A-22-309(1)(c). Section 31A-22-309 limits the instances under which a person may "maintain a cause of action for general damages arising out of personal injuries alleged to have been caused by an automobile accident." Utah Code Ann. § 31A-22-309(1) (1994). Among the exceptions are instances in which an individual sustains "permanent disability or permanent impairment based upon objective findings." Id. § 31A-22-309(1)(c) (emphasis added).

Farris's memorandum supporting his motion for summary judgment stated: "Injuries claimed by [McNair] do not constitute a 'serious impairment of bodily function.' " McNair contends that Farris failed to show "that the pleadings did not raise the issue, since McNair alleged in his Complaint that 'plaintiff was caused to and continues to suffer from ... (c) Permanent disability' " and "Farris did not provide any evidence that there was no permanent disability." Moreover, McNair asserts that his deposition, ³ "when viewed in the light most favorable to McNair, shows that McNair was capable of producing evidence at trial which would have sustained a judgment in his favor." However, McNair overlooks the "objective findings" language of section 31A-22-309(1)(c).

In Rushton v. Gelco Express, 732 P.2d 109 (Utah 1986), an injured employee "filed an application with the Industrial Commission ('Commission') claiming both temporary total and permanent partial disability as a result of injuries she sustained in a fall." Id. at 110. Rushton had received treatment from three specialists other than her treating physician, each of whom "conducted several tests, all of which produced normal results despite [Rushton's] continued complaints of worsening pain." Id. In determining whether or not the Commission's adoption of the findings of the three specialists, rather than the findings of Rushton's treating physician, "ha[d] a reasonable basis in the evidence and therefore [were] not arbitrary and capricious," the court noted several times the difference between the "objective findings" of the medical specialists and the "subjective symptoms reported by [Rushton]." Id. at 112; see also Cineas v. Mammone, 270 N.J.Super. 200, 636 A.2d 1071, 1077 (Ct.App.Div.1994) ("The medical reports from plaintiff's treating doctors provided objective credible evidence sufficient to meet the requirements of the verbal threshold statute."). This distinction is particularly relevant in the present case.

As previously noted, McNair relies on the allegations in his complaint and his own deposition, in which he reported ongoing soreness in his foot, as evidence of a material fact which should have precluded the trial court's entry of summary judgment in favor of Farris....