On February 6, 2013, the Hon. Jeffrey K. Sprecher of the Berks County Court of Common Pleas filed an Opinion in support of an Order granting summary judgment to a defendant in a personal injury action. See Cadena v. Latch, No. 09-11475 (Ct. Com. Pl. Berks Co., Feb. 6, 2013). According to the Court's Opinion, the plaintiff was allegedly injured as a result of an October 2007 accident (the "Accident"). She complained of pain in her back, neck, shoulder, and left eye, and sought damages for, among other things, pain and suffering.
Plaintiff elected limited tort coverage under the automobile insurance policy and was therefore limited to economic damages (i.e., out-of-pocket expenses, loss of income, etc.) under Pennsylvania law, unless she could demonstrate that she suffered a "serious impairment of a body function."
Approximately one month after the accident, the plaintiff consulted with an orthopedic physician. MRI tests revealed mild degenerative changes at multiple levels in her spine, but the radiographs did not reveal a traumatic injury. The orthopedic physician diagnosed her with, among other things, cervical and lumbosacral strain/sprain, radiculitis, and headaches, and discharged her from treatment on July 10, 2008, after five appointments. The plaintiff sought no further treatment. In addition to the consultations, the plaintiff underwent ten physical therapy treatments between November 27, 2007, and March 18, 2008.
In June 2011, the plaintiff underwent an Independent Medical Examination ("IME") as part of her lawsuit. The IME report revealed pre-existing degenerative changes in the cervical and lumbar spine. The IME physician opined that there were no permanent injuries, and that the plaintiff had made a full recovery.
The defendant filed a motion for summary judgment, citing the findings from the IME report and the plaintiff's limited tort election. The Court granted the motion and entered judgment in favor of the defendant, finding that the plaintiff had sustained no "serious injuries," was seeking recovery only for non-economic damages, and had only selected the limited tort option on her automobile insurance policy.
The plaintiff appealed to Pennsylvania's intermediate appellate court, the Superior Court, arguing that the Court erred when it decided that she had not suffered a threshold injury (i.e., a serious impairment of a body function) as a matter of law, thereby precluding her from seeking non-economic damages under 75 Pa. C.S.A. § 1705.
Judge Sprecher disagrees. Although the Pennsylvania Supreme Court ruled in Washington v. Baxter, 719 A.2d 733 (Pa. 1998) that the determination of whether serious injury exists should be made by the jury in all but the clearest cases, there is, nevertheless, limited latitude for a trial court to find as a matter of law that no serious injury occurred. In determining whether a "serious injury" exists, Washington requires the trial court to consider, among other things, the extent of the impairment, the length of time the impairment lasted, and the treatment required to correct the impairment.
Judge Sprecher found that this matter need not be submitted to the jury because reasonable minds could not differ that the plaintiff suffered no serious injuries. Applying the considerations set forth in Washington, Judge Sprecher pointed out that the plaintiff returned to work within a week of the time of the automobile accident. In fact, she even quit her job and opened her own accounting business. She continued to vacation with her family. Importantly, she underwent only nine months of treatment and has not visited a physician for her alleged injuries since July, 2008. She currently only suffers from sporadic pain, and her IME concluded that she recovered from all injuries suffered in the Accident.
In sum, Judge Sprecher was not convinced that the plaintiff's ongoing aches and pains were satisfactory evidence of a serious injury, and, therefore, she could not pierce the limited tort threshold.
Courts rarely grant summary judgment in these types of cases. The uncontroverted evidence, however, showed that the plaintiff was barely slowed by her alleged injuries and only briefly underwent medical treatment. This case should be interesting to watch on appeal because, if affirmed, defendants in matters involving limited tort plaintiffs will have another arrow in their quiver in support of a dispositive motion. An affirmation with an opinion will almost certainly address the trial court's latitude to dismiss limited tort actions where the plaintiff is alleged to have incurred some injuries, albeit not one that is sufficiently "serious." One thing is for certain: to protect yourself, elect full tort option.
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