Tagliati v. Nationwide Ins. Co.

Citation720 A.2d 1051
PartiesLarry TAGLIATI, Appellant, v. NATIONWIDE INSURANCE COMPANY, Appellee. Jeffrey FUNKHOUSER, Appellant, v. NATIONWIDE INSURANCE COMPANY, Appellee. Jacque KENNEDY, Appellant, v. NATIONWIDE INSURANCE COMPANY, Appellee. Viola HOWARD, Appellant, v. NATIONWIDE INSURANCE COMPANY, Appellee.
Decision Date06 October 1998
CourtSuperior Court of Pennsylvania

Dominic D. Salvatori, Pittsburgh, for appellants.

John B. Cromer, Pittsburgh, for appellee.

Before DEL SOLE, JOYCE and MONTEMURO1, JJ.

JOYCE, Judge:

These consolidated appeals are from the final judgments entered in favor of Appellee, Nationwide Insurance Company (Nationwide) in connection with the underlying actions for payment of first party medical benefits brought by Appellants, Larry Tagliati, Jeffrey Funkhouser, Jacque Kennedy and Viola Howard, pursuant to their policies with Appellee. For the reasons set forth below, we vacate the judgments and remand for further proceedings consistent with this opinion. Before addressing the merits of Appellants' claims, we will recount the pertinent facts of this case.

Each Appellant was injured in an automobile accident in 1987. Each was eligible for first party medical benefits arising under policies issued by Appellee. Appellants all received chiropractic treatment for their injuries. The chiropractors referred Appellants for thermographic studies for purposes of diagnosis and treatment.2 Appellee refused to compensate Appellants for the cost of the thermographs.

Appellants thereafter instituted suit against Appellee to recoup payment for these expenses. The cases were consolidated for arbitration. Following an arbitration hearing in October, 1988, Appellants were awarded the cost of the thermography plus interest and attorneys' fees. Appellee timely appealed.

A non-jury trial de novo was held in August of 1989 following which the trial judge decided in favor of Appellee. Appellants timely filed post-trial motions as well as supplemental post-trial motions. The trial court denied these motions. Appellants timely appealed. This Court vacated the judgments and remanded for further consideration of Appellants' supplemental post-trial motions. See Kennedy v. Nationwide Insurance Co., 412 Pa.Super. 655, 594 A.2d 788 (Pa.Super.1991) (unpublished memorandum).

By the time the case was remanded, the judge who had presided over the trial had left the bench. For reasons that do not appear of record, the post-trial motions were not finally disposed of until 1997. Judgments were then duly entered in favor of Appellee. Appellants timely appealed and present the following issues for review: (1) whether the trial court erred in determining as a matter of law that thermography is not a reasonable and necessary medical treatment; and (2) whether the trial court erred in concluding that Appellee's denial of Appellants' claims was reasonable, thus entitling Appellants' to attorneys' fees pursuant to 75 Pa. C.S.A. § 1798(b).

The role of an appellate court in reviewing the trial court's final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Furthermore, the findings of the trial judge in a nonjury case must be given the same weight as a jury verdict and will not be disturbed on appeal absent error of law or abuse of discretion. When this [C]ourt reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and, conversely, all unfavorable inferences rejected.

Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa.Super. 545, 646 A.2d 1228, 1231 (Pa.Super.1994) (citations omitted). "Since the trial judge is in the best position to judge the credibility of the witnesses, an appellate court may not re-examine the weight to be given to their testimony. Similarly, an appellate court may not substitute its judgment for that of the trial judge." Alberici v. Safeguard Mutual Insurance Co., 444 Pa.Super. 351, 664 A.2d 110, 113 (Pa.Super.1995) (citations omitted).

Conclusions of law, however, are not binding on an appellate court, whose duty it is to determine whether there was a proper application of law to fact by the lower court. 2401 Pennsylvania Avenue Corporation v. Federation of Jewish Agencies of Greater Philadelphia, 507 Pa. 166, 172, 489 A.2d 733, 736 (1985). With regard to such matters, our scope of review is plenary as it is with any review of questions of law. Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189 (1997). We shall evaluate the decision of the trial court as well as Appellants' argument in accordance with these principles.

Appellants initially challenge the trial court's determination that thermography is not a reasonable and necessary medical expense. The Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1712(1) governs the provision of first party medical benefits and provides that:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title... shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:
(1) Medical benefit.—Subject to the limitations of section 1797 (relating to customary charges for treatment), coverage to provide for reasonable and necessary medical treatment and rehabilitative services, including but not limited to, hospital, dental, surgical, psychiatric, psychological, osteopathic, ambulance, chiropractic, licensed physical therapy, nursing services, vocational rehabilitation and occupational therapy, speech pathology and audiology, optometric services, medications, medical supplies and prosthetic devices, all without limitation as to time, provided that, within 18 months from the date of the accident causing injury, it is ascertainable with reasonable medical probability that further expenses may be incurred as a result of the injury. Benefits under this paragraph may include any nonmedical remedial care and treatment rendered in accordance with a recognized religious method of healing.

75 Pa.C.S.A. § 1712(1).

The instant dispute turns on whether the thermography rendered to Appellants constitutes reasonable and necessary medical treatment so as to be compensable under section 1712(1). Our research has failed to uncover any precedential Pennsylvania appellate cases on this subject.3 Consequently, both parties reference the law of other jurisdictions. Appellants rely upon caselaw that has found thermography to be compensable. Appellee, on the other hand, seeks to distinguish these authorities and further argues that thermography should not be compensable because it does not meet the Frye4 test governing the admissibility of scientific evidence.5

With regard to the issue of whether thermograms constitute admissible scientific evidence under Frye, we note that two of our sister states have concluded that they do, provided that an adequate foundation has been laid. See, e.g., Fay v. Mincey, 454 So.2d 587, 593-594 (Fla.Dist.Ct.App.1984)

; Procida v. McLaughlin, 195 N.J.Super. 396, 404, 479 A.2d 447, 451 (1984). But see Crawford v. Shivashankar, 474 So.2d 873, 875 (Fla.Dist.Ct.App.1985) and Ferlise v. Eiler, 202 N.J.Super. 330, 334-335, 495 A.2d 129, 131 (1985) (both of which decline to hold that thermograms constitute admissible scientific evidence based on the lack of a sufficient evidentiary foundation). However, at least three other jurisdictions, as well as one Pennsylvania case from the court of common pleas, have reached a contrary result. See, e.g., K-Mart Corp. v. Morrison, 609 N.E.2d 17, 26 (Ind.Ct.App.1993); Kluck v. Borland, 162 Mich. App. 695, 699, 413 N.W.2d 90, 92 (1987); Burkett v. Northern, 43 Wash.App. 143, 147, 715 P.2d 1159, 1161 (1986),

review denied, 106 Wash.2d 1008 (1986); Szmodis v. Geiger, 43 Pa. D. & C.3d 484, 487-488 (Lehigh Cty.1985). We do not consider any of these decisions to be dispositive because the question of whether thermograms meet the Frye test is irrelevant.

The instant appeal does not require us to decide whether thermographic results have gained sufficient scientific acceptance so as to be admissible under Frye. Rather, the question at issue here is whether thermography is a reasonable and necessary medical treatment within the meaning of the MVFRL. Section 1712(1) does not make the compensability of reasonable and necessary medical expenses contingent upon proof that the particular treatment, service or device has gained general acceptance by those who practice in the field. The statute is instead broadly phrased and authorizes payment for all reasonable and necessary medical treatment and rehabilitative services, including, but not limited to the wide array of matters set forth above. Moreover, this Court has recognized that while

the MVFRL was enacted as a means of insurance reform to reduce the escalating costs of purchasing insurance[,] ... the underlying objective of the law is to provide broad coverage to assure the financial integrity of the policyholder. The Law [thus] is to be construed liberally to afford the greatest possible coverage to injured claimants. In close or doubtful cases, it is well established that a court should resolve the meaning of insurance policy provisions or the legislative intent in favor of coverage for the insured.

Danko v. Erie Insurance Exchange, 428 Pa.Super. 223, 630 A.2d 1219, 1222 (Pa.Super.1993), affirmed, 538 Pa. 572, 649 A.2d 935 (1994) (citations omitted).

Medical technology is advancing more rapidly than the law. It is thus conceivable that a cutting-edge procedure, device or service may fall within the meaning of reasonable and necessary medical treatment, even though it has not...

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