Tuhy v. Schlabsz
| Decision Date | 12 February 1998 |
| Docket Number | No. 970176,970176 |
| Citation | 574 N.W.2d 823,1998 ND 31 |
| Parties | Sandra TUHY and David Tuhy, Plaintiffs and Appellants, v. Stanley R. SCHLABSZ, Defendant and Appellee. Civil |
| Court | North Dakota Supreme Court |
Senn Law Office, Dickinson, for plaintiffs and appellants; argued by David F. Senn.
McGee, Hankla, Backes & Dobrovolny, Minot, for defendant and appellee; argued by Jason R. Vendsel.
¶1 Sandra and David Tuhy appealed a summary judgment dismissing their auto negligence action for lack of a serious injury. We reverse and remand for trial.
¶2 On November 26, 1986, Sandra was a passenger in a car that collided with a pickup driven by Stanley Schlabsz. Sandra, who was insured by a no-fault policy, claimed injuries from Stanley's negligence. She and her husband sued Stanley in 1992 for damages from injuries to her neck, lower back, and knees.
¶3 Stanley moved for summary judgment in 1995, arguing Sandra did not have the "serious injury" for an action under the North Dakota Auto Accident Reparations Act. Sandra and Stanley contested the seriousness of her injuries in various hearings and conferences until April 14, 1997, when the trial court ruled Sandra had "not sustained her burden of establishing ... the no-fault threshold requirement of a 'serious injury.' " The court granted summary judgment dismissing the claims, and Sandra and her husband appealed.
¶4 Summary judgment under N.D.R.Civ.P. 56 is a procedure for the prompt disposition of a controversy without a trial. Stanley v. Turtle Mountain Gas & Oil, 1997 ND 169, p 6, 567 N.W.2d 345. Summary judgment is appropriate when there are no genuine disputes about material facts. Hovland v. City of Grand Forks, 1997 ND 95, p 5, 563 N.W.2d 384. The litigant moving for summary judgment has the burden of demonstrating no material facts are disputed. Matter of Estate of Lutz, 1997 ND 82, p 14, 563 N.W.2d 90. The litigant opposing the motion must present admissible and competent evidence by affidavit or comparable means to dispute one or more material facts. N.D.R.Civ.P. 56(e). As we explained in Ellingson v. Knudson, 498 N.W.2d 814, 817 (N.D.1993) (citation omitted), "the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from the evidence to determine whether summary judgment is appropriate."
¶5 In reviewing a summary judgment, "we view the evidence in the light most favorable to the non-moving party and then determine if the trial court properly granted summary judgment as a matter of law." Hovland, 1997 ND 95 at p 5, 563 N.W.2d 384 (citing Ertelt v. EMCASCO Ins. Co., 486 N.W.2d 233, 234 (N.D.1992)). Because the evidence here indicates a genuine dispute about whether Sandra had a "serious injury" from the auto collision, we reverse the summary judgment.
¶6 Under the no-fault auto accident reparations law, an insured claimant can recover non-economic damages in a tort action only if the claimant has a "serious injury." NDCC 26.1-41-08(1)(a). And, an insured claimant cannot recover economic loss, such as medical expenses, "to the extent of all basic no-fault benefits paid or to become payable for such injury...." NDCC 26.1-41-08(1)(b). A "serious injury" is
... an accidental bodily injury which results in death, dismemberment, serious and permanent disfigurement or disability beyond sixty days, or medical expenses in excess of two thousand five hundred dollars.
NDCC 26.1-41-01(21) (part). The injured claimant has the burden to prove a "serious injury." Reisenauer v. Schaefer, 515 N.W.2d 152, 155 (N.D.1994). Sandra contended there were genuine disputes of material fact on whether she had a serious and permanent disfigurement, a disability beyond sixty days, or more than $2,500 in medical expenses necessary for a "serious injury."
¶7 For one of the alternative ways to meet the threshold requirement of a "serious injury," Sandra claimed "a cut on her upper lip which resulted in a permanent scar" left her with a serious and permanent disfigurement. In her deposition, however, Sandra admitted, while the scar was "quite visible" to herself, no one had ever pointed it out or commented on it. In granting summary judgment, the trial court concluded:
[Sandra] does not have a "serious and permanent disfigurement" by a claimed scar on her lip. This Court attempted to identify a scar on [Sandra's] lip at the hearing on this matter, and on close observation of [her] lip, there did not appear to be a visible scar and therefore [Sandra] does not have a "serious and permanent disfigurement."
Thus, Sandra did not show disputed facts for a "serious and permanent disfigurement" from the collision.
¶8 Sandra also claimed she met the threshold of a "serious injury" by a "disability beyond sixty days." For auto accident reparations, disability is defined by NDCC 26.1-41-01(6) as "the inability to engage in substantially all of the injured person's usual and customary daily activities."
¶9 Sandra testified that she has constant pain, frequent headaches, and knee and back pain that give her difficulty in getting up and down steps, washing floors, and gardening. Yet, in her deposition, Sandra also said she continued to walk a mile a day after the collision, as was her custom beforehand. She testified she had gardened for a couple of years after the collision, although she quit gardening later. Furthermore, she testified her recreational and household activities were not affected by the collision. Because she had not been employed at the time, Sandra had not missed any work. Since then, she has become employed to deliver newspapers and serve as a playground and lunchroom supervisor at a local school. Altogether, this shows Sandra was not unable "to engage in substantially all of [her] usual and customary daily activities" as NDCC 26.1-41-01(6) defines the "disability beyond sixty days" that NDCC 26.1-41-01(21) requires for a "serious injury." While this evidence indicates Sandra has knee and back ailments, it does not show a genuine dispute of material fact on whether Sandra was "disabled beyond sixty days" from the collision.
¶10 For her third alternative, Sandra claimed she met the "serious injury" threshold with at least $2,500 in past and reasonably foreseeable medical expenses. In her July 28, 1995 affidavit, Sandra asserted she "has incurred the following medical expenses as a result of the accident":
St. Joseph's Hospital $1,370.68
Dickinson Clinic 158.00
Great Plains Clinic 80.00
Badlands Orthopedic 114.00
Southwest Physical Therapy 198.18
Prairie Imaging 121.00
Reopelle Chiropractic 960.00
Bone & Joint Center 507.00
---------
Total $3,508.86
In Erdmann v. Thomas, 446 N.W.2d 245, 247 (N.D.1989), we explained "in this jurisdiction, expert medical testimony is not required to lay the foundation for the admission of medical bills or expenses into evidence." A sufficient foundation can be established by a claimant's testimony that the medical bills were incurred as a result of the collision. Id.
¶11 Here, Sandra's affidavit adequately evidenced her past medical expenses. They exceeded $2,500 and, under Erdmann, met the "serious injury" threshold. Once the threshold has been met by sworn testimony of the claimant, we explained in Erdmann at 248, "the question whether the medical expenses were necessitated by the accident [becomes] one for the jury."
¶12 However, the trial court concluded Sandra had not "by affidavit or testimony" established "with...
To continue reading
Request your trial
-
Schaefer v. SRT
...admissible evidence consisting of a printout of Joseph Schaefer's prescriptions and a summary of that printout. Relying on Tuhy v. Schlabsz, 1998 ND 31, 574 N.W.2d 823, the Schaefers assert the trial court impermissibly weighed the credibility of the Schaefers' documentary evidence. SRT mai......
-
Ag Services of America, Inc. v. Midwest Investment Ltd. Partnership
...to the non-moving party and determine if the trial court properly granted summary judgment as a matter of law. Tuhy v. Schlabsz, 1998 ND 31, p 5, 574 N.W.2d 823. ¶10 Ag Services contends the trial court erred in determining its unilateral assessment of service charges and attorney fees alte......
-
Wishnatsky v. Huey, 980067CA
...favorable to the non-moving party to determine if the trial court properly granted summary judgment as a matter of law. Tuhy v. Schlabsz, 1998 ND 31, p 5, 574 N.W.2d 823. On a defendant's motion for summary judgment, the question for the court is "whether a fair-minded jury could return a v......
-
Eberhardt v. Eberhardt
...can be established for the admission of medical bills into evidence by the claimant's testimony the bills were incurred. Tuhy v. Schlabsz, 1998 ND 31, ¶ 10, 574 N.W.2d 823. "The question whether evidence should be excluded for lack of authentication is primarily within the sound discretion ......