Washington v. Baxter

• Citation: 719 A.2d 733,553 Pa. 434
• Parties: Kenneth WASHINGTON, Appellant, v. Robert L. BAXTER, Jr., Appellee.
• Decision Date: 29 October 1998
• Court: Pennsylvania Supreme Court

719 A.2d 733

553 Pa. 434

Kenneth WASHINGTON, Appellant, v. Robert L. BAXTER, Jr., Appellee.

Supreme Court of Pennsylvania.

Submitted April 22, 1998.

Decided October 29, 1998.

James A. Nettleton, Jr., Lancaster, for Kenneth Washington.

John Philip Stengel, Lancaster, for Robert L. Baxter, Jr.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION OF THE COURT

CAPPY, Justice.

The question presented in this appeal is whether summary judgment was properly entered against Kenneth Washington ("Appellant"), a limited tort elector, in his action for noneconomic losses arising out of an automobile accident. Because we find that Appellant has not presented sufficient evidence to show that he suffered a serious impairment of a body function, and therefore has not shown he is entitled to recover noneconomic damages, we affirm the entry of summary judgment against Appellant.

The record reveals¹ that on April 15, 1994, Appellant was operating a motor vehicle which was struck by a vehicle driven by Robert L. Baxter ("Appellee"). As a result of the accident, Appellant suffered injuries which included cervical strain or sprain, cuts and contusions, as well as an injury to his right foot. The injury to the foot was diagnosed as a mild sprain or strain. St. Joseph Hospital Emergency Room Records, 4/15/94. He was treated at a hospital emergency room that day, received a prescription-strength analgesic,² and was discharged within a few hours. Id.; Deposition, 5/05/95, at 23.

Immediately after the accident, Appellant was unable to work at his two jobs, both of which required him to perform the bulk of his work while on his feet. At his first job, where he worked a forty-eight hour a week schedule, he was unable to report to work for approximately four or five days. Deposition, 5/05/95, at 39. At his second job, where he worked once a week for three or four hours, Appellant did not report for work for approximately one to two months. Deposition, 5/05/95, at 51.

Approximately five months after the accident, Appellant began treating with Dr. Douglas Bream. Dr. Bream indicated that there was "some type of subtalar joint³ arthritis or coalition in the right foot," and that Appellant might need to utilize orthotic heel lifts. Attachments to Plaintiff's Response to Defendant's Motion for Partial Summary Judgment, 10/12/95.⁴ As part of Appellant's treatment regimen, Dr. Bream administered one injection of cortisone into Appellant's foot. Dr. Bream also stated that Appellant had limited range of motion in one of the joints in his right foot; he did not, however, comment on whether that limitation was minimal or severe. Id.⁵

Appellant was deposed approximately one year after the accident. At that time, Appellant testified that the injury still caused him pain roughly every other week, and that his ankle was often swollen. Id. at 43. Furthermore, he stated that he was able to perform his normal job responsibilities as he had been able to prior to the accident. Deposition, 5/05/95, at 44. Finally, the only aspect of his life to which Appellant 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 must use a riding mower. Deposition, 5/05/95, at 64.

At the time of the accident, Appellant was insured under an automobile insurance policy issued by State Farm Mutual Automobile Insurance Company. Under this policy, Appellant had elected the limited tort option pursuant to the provisions of § 1705 of the Motor Vehicle Financial Responsibility Law ("MVFRL").⁶ Section 1705 states in pertinent part that

[e]ach person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss....

75 Pa.C.S. § 1705(d).⁷ The MVFRL defines "serious injury" as "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." 75 Pa.C.S. § 1702. Thus, while an insured who has elected the limited tort option remains eligible to seek compensation for economic loss sustained in a motor vehicle accident caused by the negligence of another, the insured will be precluded from maintaining an action for any noneconomic losses unless the insured can show that his injuries cross the "serious injury" threshold.

At the close of discovery, Appellee filed a motion for partial summary judgment, asserting that Appellant's status as a limited tort elector precluded his recovery for noneconomic damages because his injuries were not serious. The trial court, relying on the Superior Court's decision in Dodson v. Elvey, 445 Pa.Super. 479, 665 A.2d 1223 (1995)allocatur granted, 544 Pa. 608, 674 A.2d 1072 (1996), granted Appellee's motion for partial summary judgment. Relying on the Superior Court's Dodson decision, the trial court concluded that a determination regarding the seriousness of a limited tort elector's injuries must initially be made by the trial court judge. Tr. ct. slip op. at 3. The trial court emphasized that in making this determination, the "`judge should not focus on the injury but should focus on the nature and extent of plaintiff's impairment as a consequence of the injury.'" Tr. ct. slip op. at 4 (citing Dodson, 665 A.2d at 1231). The trial court stated that the facts of this matter, when taken in the light most favorable to Appellant as the non-moving party, established that Appellant suffered from continued pain, inflammation, and "arthritic changes" which may necessitate the wearing of orthotic heel lifts. Tr. ct. slip op. at 5. The trial court went on to note that since the accident, Appellant had to use a riding mower rather than a push mower. Finally, the trial court noted that after a brief absence following the accident, Appellant had returned to both of his pre-accident positions of employment with no reduction in responsibilities. The trial court concluded that these facts, as a matter of law, did not constitute a serious injury and therefore granted Appellee's motion for partial summary judgment.

Appellant filed an appeal from that order to the Superior Court; the Superior Court quashed that appeal as interlocutory. The matter was returned to the trial court where an arbitration award was entered which settled all of the remaining issues. At that juncture, Appellant filed his appeal with the Superior Court, again challenging the trial court's determination that as a matter of law he had not suffered a serious injury.

The Superior Court, in a brief memorandum opinion, affirmed. Relying exclusively on its Dodson opinion, the Superior Court stated that the threshold question of whether Appellant's injuries were serious was one for a trial court judge to answer prior to the matter being presented to a jury. The Superior Court agreed with the trial court that Appellant had failed to establish that he had suffered a serious injury and therefore affirmed. Appellant subsequently filed a petition for allowance of appeal, and we granted review.

In examining this matter, as with all summary judgment cases, we must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non-moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Finally, we stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Our scope of review in this matter is plenary. See Phillips v. A-Best Products Co., 542 Pa. 124, 129-131, 665 A.2d 1167, 1170 (1995)

.

The lower courts here determined that the Superior Court's Dodson opinion mandated the entry of partial summary judgment in this matter. Dodson has also been cited as the controlling authority in numerous other lower court cases concerning noneconomic damages claims raised by limited tort electors. See, e.g., Kelly v. Ziolko, 705 A.2d 868 (Pa.Super.Ct.1997)

; Walls v. Scheckler, 700 A.2d 532 (Pa.Super.Ct.1997); Leonelli v. McMullen, 700 A.2d 525 (Pa.Super.Ct.1997). Because of the importance which Dodson holds in this case in particular, and in this area of the law in general, we believe that a thorough review of that opinion is appropriate at this juncture.

Michael Dodson ("Dodson"), a limited tort elector, was injured in an automobile accident. Dodson filed a complaint, requesting inter alia noneconomic damages. The defendant filed a summary judgment motion, alleging that Dodson's injuries were not serious. The Dodson trial court granted the defendant's motion for summary judgment, concluding that determinations regarding the seriousness of a limited tort elector's injuries must be made by trial courts at the earliest possible stage in the proceedings in order to effectuate the legislature's intent to lower insurance costs. The trial court further reasoned that if this issue were to be submitted to a jury for resolution in all cases, the legislature's purpose for crafting Section 1705 would be thwarted. The trial court then reviewed the record and concluded that Appellant had not sustained a serious impairment of a...