Dodson v. Elvey

*502 SAYLOR, Judge,

dissenting:

I dissent, most respectfully, from the majority’s decision to affirm the grant of summary judgment in favor of the defendant in this action for personal injuries sustained by the plaintiff in a motor vehicle accident. I do so because my review of the record persuades me that the issue of whether or not the injuries sustained by the plaintiff could constitute a serious impairment of body function was not so free and clear from doubt as to make summary judgment appropriate.

On January 11, 1992, Dodson was operating a motor vehicle which was struck by a vehicle operated by Elvey. As a result of the accident Dodson, who is right-handed, suffered injuries, including a right elbow fracture, rotator cuff damage to his right shoulder, cervical sprain, lumbar strain and iliopsoas strain. Dodson did not return to his job as a warehouse employee from the time of the accident until May 22, 1992, when he was released to work without restriction by his physicians.

At the time of the accident, Dodson was insured under a policy of automobile insurance issued by The Hanover Insurance Companies. Under this policy, Dodson had elected a limited tort option pursuant to the provisions of Section 1705 of the Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A § 1701, et seq. (“the MVFRL”). 1 An insured who elects the “limited tort” option, while remaining eligible to seek compensation for economic loss sustained in a motor vehicle accident caused by the negligence of another, is precluded from maintaining an action for any noneconomic losses unless the insured sustains a “serious injury.” 75 Pa.C.S.A § 1705(d). 2

The MVFRL defines “serious injury” as “a personal injury resulting in death, serious impairment of body function, or *503 permanent serious disfigurement.” 75 Pa.C.S.A. § 1702. 3 Thus, under Section 1705, unless a limited tort elector suffers a serious injury, that individual cannot recover damages for noneconomic losses that are otherwise recoverable in tort actions.

On October 15, 1992, Dodson filed a personal injury action against Elvey seeking recovery for economic and noneconomic damages which Dodson sustained as a result of the accident. 4 Following a period of discovery, Elvey filed a motion for summary judgment asserting that Dodson’s status as a limited tort elector precluded his recovery for noneconomic damages because his injuries were not serious. Dodson filed an affidavit in opposition to the motion with attachments consisting of his deposition testimony and two medical reports from a treating physician.

In ruling on Elvey’s motion for summary judgment, the trial court held 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. The trial court reasoned that the legislative history of 75 Pa.C.S.A. § 1705 revealed the intent of the Pennsylvania legislature to lower insurance premiums by reducing the number of small claims for pain and suffering, and that such cost savings could be realized only by allowing trial judges to determine the seriousness of a claimant’s injuries as a matter of law. The trial court further reasoned that if this issue in all cases were to be submitted to a jury for resolution, the purpose of Section 1705 would be thwarted. The trial court then reviewed the record, and concluded that Dodson had not sustained an impairment *504 of body function; accordingly, it granted Elvey’s motion for summary judgment. This appeal followed.

In reviewing motions for summary judgment, Pennsylvania courts apply the following standard:

Summary judgment may be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. Rule 1035(b), 42 Pa.C.S.A. The trial court must examine the record in the light most favorable to the non-moving party and accept as true all well-pleaded facts in his or her pleadings as well as give him or her the benefit of all reasonable inferences drawn therefrom. Dibble v. Security of America Life Ins., 404 Pa.Super. 205 , 590 A.2d 352 (1991); Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456 , 577 A.2d 631 (1990). Finally, summary judgment should be granted only in cases that are free and clear from doubt. Marks v. Tasman, 527 Pa. 132 , 589 A.2d 205 (1991).

Kelly by Kelly v. Ickes, 427 Pa.Super. 542, 547 , 629 A.2d 1002, 1004 (1993).

On appeal, Dodson contends that the trial court erred in granting summary judgment based upon its finding that Dodson did not suffer a serious injury, because such issue should have been submitted to a jury under the facts of this case. Elvey contends, however, that Dodson did not suffer a serious injury within the meaning of the statute and that the trial court properly determined this issue as a matter of law in a summary judgment proceeding since a limited tort elector is precluded from maintaining an action for noneconomic damages in the absence of a serious injury.

The MVFRL was enacted in 1984 to replace the Pennsylvania No-Fault Act, P.L. 489, No. 176 (1974). However, the cost of automobile insurance in Pennsylvania continued to escalate, and the trial court correctly discerned that one of the legislative purposes in enacting a limited tort option as part of the *505 omnibus amendments to the MVFRL in 1990 was to lower insurance premiums by reducing the number of small claims for pain and suffering. See, Legislative Journal-House, No. 11, February 7, 1990, pp. 202, 223; see also, Berger v. Rinaldi, 438 Pa.Super. 78, 82 , 651 A.2d 553, 554-555 (1994). Thus, an insured who elects the limited tort option is precluded from maintaining an action for noneconomic damages, i.e., pain and suffering, unless he meets the statutory threshold of having suffered “serious injury.” 75 Pa.C.S.A. § 1705.

In cases involving this issue, a defendant will typically move for summary judgment on the basis that the plaintiff has not met the “serious injury” threshold and is therefore precluded from maintaining the action for noneconomic losses, requesting judgment in its favor which if granted would terminate the litigation.

I have no disagreement with the proposition that a court may, in appropriate cases, determine this threshold issue in a summary judgment proceeding. 5 The majority holds, however, that upon the filing of a motion for summary judgment, where there is no substantial dispute of material fact that the plaintiff has or has not met the “serious impairment of body function” threshold, the court should make the determination as a matter of law. I submit, most respectfully, that this is the ultimate issue and will always be in dispute in a summary judgment proceeding challenging a limited tort elector’s right to proceed to trial. In my view, under Pennsylvania’s traditional summary judgment analysis, judgment as a matter of law is appropriate only in the clearest of cases. If there is any doubt regarding the seriousness of a plaintiffs injuries, I believe that the issue should be submitted to a jury. I would also note that in certain instances, while there may be no dispute over the objective manifestation of an impairment as revealed by a medical diagnosis, differing inferences may be drawn as respects the seriousness of such impairment thereby *506 making, in my view, summary judgment inappropriate in such a case.

In analyzing the seriousness of a plaintiffs injuries I would, as does the majority, look to Michigan jurisprudence for guidance since the MVFRL’s threshold is modeled after similar language in Michigan’s no-fault statute. See, Legislative Journal-House, No. 42, June 13, 1989, pp. 986-987. The Michigan Supreme Court most recently addressed this issue in the case of DiFranco v. Pickard, 427 Mich. 32 , 398 N.W.2d 896 (1986). The DiFranco court began its analysis of the “serious impairment of body function” threshold by identifying the following two inquiries:

a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?

b) Was the impairment of body function serious?

It determined that “the focus of these inquiries is not on the injuries themselves, but how the injuries affected a particular body function,” and held that generally, medical testimony would be needed to establish the existence, extent, and permanency of the impairment. 6 The court observed that while identifying the body functions which were impaired is a relatively simple task, determining whether the impairment is serious requires a more complicated evaluation of certain *507 factors, which it proceeded to delineate and discuss: (1) the extent of the impairment; (2) the particular body function impaired; (3) the length of time the impairment lasted; (4) the type of treatment required to correct the impairment; and (5) any other relevant factors.

The DiFranco court, in elaborating on these factors, noted that the extent of an impairment is often expressed in numerical terms, such as a percentage limitation on movement, and that the particular body function impaired may make a difference in this determination. Regarding the duration of the impairment, it,noted that a permanent impairment is more serious than a temporary impairment of like character, but that a plaintiffs complete recovery should not negate the fact that he sustained a serious impairment of body function for a significant period of time. The type of treatment required to correct the impairment may also be relevant since, for example, an impairment which can be corrected only through surgery is more serious than treatment involving only bed rest. Furthermore, the plaintiffs abilities and activities before and after the accident may be relevant to the extent that they establish the existence, extent and duration of an impairment of function.

I find this analysis thoughtful and reasoned, and would explicitly adopt it for purposes of providing guidance to trial courts and juries in Pennsylvania faced with this issue. 7

The record in this case indicates that immediately following Elvey’s collision with Dodson, Dodson visited a hospital emergency room where he was examined, given a sling for his right arm and shoulder, and released. Following his discharge from the hospital emergency room, Dodson underwent a four month period of recuperation. During this time, Dodson was examined by Dr. Fulchiero, who Dodson visited on approximately six occasions. Dr. Fulchiero determined that Dodson suffered rotator cuff damage in his right shoulder and a right elbow fracture as a result of the accident and that his range of motion was restricted in the extremes, and recommended that *508 he wear a sling for his right arm and shoulder. In addition, Dr. Fulchiero diagnosed post-traumatic impingement syndrome in his right shoulder and recommended that he take certain prescription drugs, including Darvocet and Orudis, and injected Dodson’s shoulder with corticosteroid and xylocaine. Dodson began a regimen of physical therapy for his right arm and shoulder at Mercy Hospital on the recommendation of Dr. Fulchiero, which included progressive resistance exercises, electrical stimulation, and hydrotherapy three to four times daily, for seven days following Dodson’s initial visit, and three times per week thereafter for several weeks. Dodson also was placed on a home exercise program of isometrics and theraband. During the entire four month period of treatment, Dr. Fulchiero did not allow Dodson to return to work.

On the advice of his attorney, Dodson was also examined by Dr. Victoria Smith on January 24, 1992. Dr. Smith diagnosed Dodson as also suffering from cervical sprain, lumbar strain and iliopsoas strain, and noted that he had a limited range of motion in his right elbow and shoulder. Dr. Smith also recommended a regimen of physical therapy, and on February 14, 1992, injected the trigger point in Dodson’s right scapula with Depo Medrol and Lidocaine. On March 6, 1992, Dr. Smith noted that Dodson had experienced a moderate muscle spasm in his right scapula. Dodson continued to see Dr. Smith, and in April, 1992, began a reconditioning program at Keystone Rehabilitation Systems to expedite his release to work. The treating physical therapist noted on April 6, 1992 that Dodson was experiencing muscle spasms in his right shoulder.

Dr. Smith indicated in a report dated August 3, 1992 that Dodson would experience mild to moderate long term upper extremity weakness and that the fracture of his elbow made it more likely that he would develop arthritis in the future. In a follow-up report dated October 12, 1992, Dr. Smith indicated that Dodson had a full range of motion with some stiffness at the extremes and experienced a slight decrease in strength in his right upper extremity as a result of the injury.

*509 At his deposition, taken on July 23, 1993, Dodson indicated that he had worn the sling, which partially immobilized his right arm and shoulder, for approximately four months following the accident. During this time, Dodson did not perform his duties as a warehouse employee, which involved lifting. He also complained of continuing pain in his right elbow and shoulder which prevents him from performing certain preaccident activities, including softball, bowling and weight lifting. In addition, he experiences problems with his right elbow in cold weather, and must carry his small child in his left arm.

Based on this evidence, the trial court determined that Dodson did not sustain any impairment of body function. I would conclude, however, that when this record is reviewed with reference to the relevant criteria of DiFranco , Elvey’s right to judgment was not so free and clear from doubt as to make the entry of summary judgment appropriate. Stated otherwise, Dodson proffered evidence sufficient to withstand the defendant’s motion for the summary termination of his action.

There was medical evidence that Dodson sustained a fracture in his right elbow and rotator cuff damage in his right shoulder, and that the range of motion in his right arm and shoulder was limited for at least four months following the injury. Dodson was unable to return to work because of his injuries, and he indicated that because of pain in his arm and shoulder, he was unable to perform certain pre-accident activities. Dodson also experienced muscle spasms in his right shoulder, was injected with various medications, and underwent a four-month period of physical therapy to recondition his elbow and shoulder. Also, Dodson will experience long-term upper extremity weakness and may develop arthritis in his right elbow as a result of his injuries. Thus, I would hold that Elvey was not entitled to judgment as a matter of law and that the issue of whether or not Dodson suffered a serious impairment of body function should have been submitted to a jury. Because the majority holds otherwise, I respectfully dissent.

. Section 1705 was added to the MVFRL in 1990, as part of a package of amendments contained in Act 1990, February 7, P.L. 11, No. 6 ("Act 6 of 1990”).

. A limited tort elector retains full tort rights and is eligible to recover for noneconomic loss under certain other exceptions, none of which apply in this case. See, 75 Pa.C.S.A. § 1705(d)(l)(2)(3).

. An amendment offered prior to the passage of Act 6 of 1990 sought to add the word "permanent” to the phrase "serious impairment of body function.” This permanency requirement was rejected by the legislature in the final enactment of Act 6. See, Legislative Journal-House, No. 42, June 13, 1989, pp. 986-987; 75 Pa.C.S.A. § 1702.

. Since Dodson survived the accident and does not contend that he suffered permanent serious disfigurement, his claim for noneconomic loss is premised on his assertion of serious impairment of body function.

. It should be noted that the Legislature rejected a proposed amendment which would have provided that the determination of whether an injury was serious would always be a question of law for the trial court. See, Legislative Journal-Senate, No. 44, December 11, 1989, pp. 1430-1479.

. DiFranco made it clear, however, that recovery for noneconomic damages is not limited to plaintiffs whose injuries can be "seen or felt”:

We disapprove of those cases which have automatically disregarded certain types of evidence merely because it was based upon plaintiff’s subjective complaints or the symptoms of an injury. An expert’s diagnosis and the basis for it (e.g., the plaintiff’s complaints, the physician's observations, and test results) can be adequately challenged at trial through cross-examination and the presentation of contrary medical evidence.

Thus the court held that the "serious impairment of body function” threshold requires a plaintiff only to prove that his noneconomic losses arose out of a medically identifiable injury which seriously impaired a body function. DiFranco v. Pickard, 427 Mich, at 74-77 , 398 N.W.2d at 918 . See, Murray v. McCann, 442 Pa.Super. at 36, 658 A.2d at 407 (1995) ("[Tjhere is no wording in the applicable statutory language which limits recovery of non-economic damages to a plaintiff whose injuries can be seen or felt by a clinical test. The issue, in accordance with the language used, is whether the injuries have seriously impaired a bodily functioning.”)

. These criteria have been embodied in Instruction 6.02D of the Pennsylvania Suggested Standard Civil Jury Instructions.