Atkinson v. Snyder

41 Pa. D. & C.4th 1, 1999 Pa. Dist. & Cnty. Dec. LEXIS 168
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedApril 15, 1999
Docketno. 97-4278-05-2
StatusPublished

This text of 41 Pa. D. & C.4th 1 (Atkinson v. Snyder) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkinson v. Snyder, 41 Pa. D. & C.4th 1, 1999 Pa. Dist. & Cnty. Dec. LEXIS 168 (Pa. Super. Ct. 1999).

Opinion

GARB, P.J.,

This is a negligence case arising from a motor vehicle accident which occurred on or about September 28, 1996 at 1:30 p.m. at or about the ramp from Route 213 to southbound U.S. Route 1, in Bensalem Township, Bucks County, Pennsylvania. The accident occurred when the vehicle driven by defendant, James Snyder, and owned by defendant, Kathleen Snyder, collided with the rear of a [3]*3vehicle operated by the plaintiff which was stopped at a stop sign. The complaint alleges that defendant, James Snyder, was negligent in the operation of the motor vehicle, and that Kathleen Snyder is liable on the theory of negligent entrustment. Pleadings and discovery are completed. Both defendants have moved for partial summary judgment on the grounds that plaintiff has failed to reach the threshold permitting non-economic recovery pursuant to his limited tort insurance policy. Partial summary judgment will be granted for defendants.

Section 1705(a)(1) of the Motor Vehicle Financial Responsibility Law1 provides that, each insurer shall notify each insured of the latter’s right to choose the limited or full tort option with a premium benefit for the choice of limited tort. The notice, as mandated by the Act, provides that it shall state that under the limited tort option, the insured may seek recovery for all medical and out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury.” Section 1705(d) provides that each 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, but “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 . . . .” (emphasis added)

In view of the fact that plaintiff has admittedly chosen the limited tort option, the question for disposition is whether, on this record, plaintiff has demonstrated that [4]*4he suffered “serious injury” in the context of a summary judgment analysis.

Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), allocatur granted, 544 Pa. 608, 674 A.2d 1072 (1996) held, inter alia, that the resolution of whether a limited tort plaintiff has sustained “serious injury” is one for the court to be made in advance of trial, not an issue for the jury, and may be determined when there is an adequate record by summary judgment. Regardless of whether Dodson v. Elvey, supra, can be construed to have decided that the issue of serious injury is always one of law for the court, pretrial, that issue has now been set to rest by our Supreme Court in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998) which held that the issue of determination of “serious injury” may be determined by summary judgment by the application of traditional summary judgment principles. That court held that the traditional summary judgment standard is to be followed, that the threshold determination was not to be made routinely by a trial judge court, but rather, must be left to a jury, “unless reasonable minds could not differ on the issue of whether a serious injury had been sustained.” Washington v. Baxter, 553 Pa. at 446-47, 719 A.2d at 740.2 Therefore, in the context of summary judgment principles, the court must determine initially (1) whether the plaintiff as moving party has established that he or she has suffered serious impairment of a bodily function; (2) whether the defendant, as moving party, has established that the plaintiff has not suffered serious impairment of a bodily function; or (3) whether there remains a genuine issue of material fact for the jury to decide. [5]*5Curran v. Children’s Service Center Inc., 396 Pa. Super. 29, 578 A.2d 8 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991). As stated more succinctly in Washington v. Baxter, supra, whether “reasonable minds could not differ on the issue of whether a serious injury had been sustained.”

In addressing the question of whether there is a serious impairment of body function, the court in Dodson, supra, adopted the standard established in Michigan in virtually identical language, and as explicated in Di-Franco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986). In that regard, in footnote 11, the Supreme Court in Washington v. Baxter affirmed Dodson in adopting the DiFranco standard. The court in DiFranco v. Pickard, supra, sets forth that standard as follows:

“The ‘serious impairment of body function’ threshold contains 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?
“The focus on these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent and permanency of an impairment ... In determining whether the impairment was serious, several factors must be considered: the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment and any other relevant factors. An impairment need not be permanent to be serious.” 427 Mich, at 39, 398 N.W.2d at 901.

An impairment involves more than the injury itself. The consequences of the injury must involve a serious [6]*6impact for an extended period of time on a plaintiff’s life. Dodson v. Elvey, supra, citing Oswin v. Shaw, 129 NJ. 290, 609 A.2d 415 (1992). It must interfere substantially with the plaintiff’s normal activities and not impose only a mild or slight limitation. Dodson v. Elvey, supra, citing Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088 (1982). See also, McClung v. Breneman, 700 A.2d 495 (Pa. Super. 1997) and Leonelli v. McMullen, 700 A.2d 525 (Pa. Super.1997), which, once again, adopted the factors to be considered by our courts as set forth in DiFranco v. Pickard.

A co-worker of the plaintiff arrived at the scene of the accident shortly after its occurrence. Although an ambulance had arrived, plaintiff declined to utilize it to the hospital, but rather was driven to the hospital emergency ward at St. Mary’s Hospital by a co-worker. His vehicle was driven from the scene by another coworker.

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Related

Washington v. Baxter
719 A.2d 733 (Supreme Court of Pennsylvania, 1998)
DiFranco v. Pickard
398 N.W.2d 896 (Michigan Supreme Court, 1986)
Curran v. Children's Service Center of Wyoming County, Inc.
578 A.2d 8 (Supreme Court of Pennsylvania, 1990)
Dodson v. Elvey
665 A.2d 1223 (Superior Court of Pennsylvania, 1995)
Oswin v. Shaw
609 A.2d 415 (Supreme Court of New Jersey, 1992)
McClung v. Breneman
700 A.2d 495 (Superior Court of Pennsylvania, 1997)
Leonelli v. McMullen
700 A.2d 525 (Superior Court of Pennsylvania, 1997)
Licari v. Elliott
441 N.E.2d 1088 (New York Court of Appeals, 1982)
Washington v. Baxter
719 A.2d 733 (Supreme Court of Pennsylvania, 1998)

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Bluebook (online)
41 Pa. D. & C.4th 1, 1999 Pa. Dist. & Cnty. Dec. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-snyder-pactcomplbucks-1999.