Bowers v. Gillin

37 Pa. D. & C.4th 330, 1997 Pa. Dist. & Cnty. Dec. LEXIS 47
CourtPennsylvania Court of Common Pleas, Cambria County
DecidedApril 21, 1997
Docketno. 1996-666; no. 7265
StatusPublished

This text of 37 Pa. D. & C.4th 330 (Bowers v. Gillin) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Cambria County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowers v. Gillin, 37 Pa. D. & C.4th 330, 1997 Pa. Dist. & Cnty. Dec. LEXIS 47 (Pa. Super. Ct. 1997).

Opinion

LEAHEY, J.,

Before the court is defendants’ motion for summary judgment, which, for the following reasons, we grant.

On January 6, 1995, plaintiff Robert Lee Bowers was operating a motor vehicle which was struck by an automobile driven by defendant Ryan Gillin.1 As a result of the accident, plaintiff Denise Bowers, a passenger in her husband’s vehicle, suffered injuries, including a medial subtalar dislocation of her right foot.

At the time of the accident, plaintiffs were insured under an automobile insurance policy wherein they had elected a limited tort option provided in section 1705 of the Motor Vehicle Financial Responsibility Law. Section 1705(d) of the MVFRL provides, in pertinent part:

“(d) Limited tort alternative. — 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 the 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 losses, . . 75 Pa.C.S. §1705(d).
[332]*332“Serious injury” is defined as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. §1702.

On February 22, 1996, plaintiffs filed a complaint against defendants seeking damages for the injuries Mrs. Bowers sustained as a result of the accident. In paragraph 8 of their complaint, plaintiffs allege that as a result of the accident, “wife-plaintiff suffered serious and permanent injuries and suffered serious and permanent impairment of her bodily functions.” Complaint, at ¶8. On February 11, 1997, defendants filed a motion for summary judgment arguing that plaintiffs cannot recover noneconomic damages under the limited tort provisions of their insurance policy because the injuries sustained by Mrs. Bowers did not involve a serious impairment of body function and, thus, were not “serious.”

Pennsylvania Rule of Civil Procedure 1035.2 provides:

“Rule 1035.2. Motion
“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential [333]*333to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2, 42 Pa.C.S.

In considering a motion for summary judgment, this court must examine the record in the light most favorable to the non-moving party, accept as true all well-pleaded facts and give that party the benefit of all reasonable inferences drawn from those facts. Summary judgment may be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits 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. Summary judgment should be granted only in cases that are free and clear from doubt. Dibble v. Security of America Life Insurance, 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); Jenkins v. Bolla, 411 Pa. Super. 119, 600 A.2d 1293 (1992); Garcia v. Savage, 402 Pa. Super. 324, 586 A.2d 1375 (1991).

In addressing plaintiffs’ motion, we are guided by Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995) (en banc), alloc. granted, 544 Pa. 608, 674 A.2d 1072 (1996). In Dodson, the Superior Court was presented with the issue of whether it was the function of the jury or of the trial judge to make the initial, threshold determination of whether a plaintiff suffered serious injury. The court, in finding that such determination must be made on case-by-case basis, instructed: “upon the filing of a motion for summary judgment, where there is no substantial dispute of material fact that the plaintiff has not met the ‘serious impairment of body function’ threshold, or that the plain[334]*334tiff has indeed met the threshold, the court should make the determination as a matter of law. If, upon review of the undisputed record, the threshold has not been met, the case should be dismissed. If, on the other hand, the evidence conclusively establishes that the plaintiff has suffered ‘serious impairment of bodily function,’ then the jury may decide only the issues of liability and damages. We limit the jury’s role to a finding of liability and damages in such a case because to do otherwise would put the plaintiff to the double burden of showing ‘serious impairment of body function’ twice, once to the judge and again to the jury. Finally, if there is a substantial dispute of fact on the threshold issue, the question is one for the jury.” Dodson, supra at 497, 665 A.2d at 1232. (footnote omitted)

In determining whether plaintiffs have presented sufficient evidence to create a genuine issue of material fact on the issue of whether Mrs. Bowers suffered a “serious impairment of bodily function,” this court is guided by the following:

“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 of 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 the impairment.... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the particular [335]*335body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.” Id. at 499, 665 A.2d at 1233-34 (quoting DiFranco v. Pickard, 427 Mich. 32, 39, 398 N.W.2d 896, 901 (1986)).

With these standards in mind, we will review the record before us. Mrs. Bowers, who was age 27 at the time of the accident and the mother of three small children, suffered a medial subtalar dislocation of her right foot.

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Related

DiFranco v. Pickard
398 N.W.2d 896 (Michigan Supreme Court, 1986)
Lower Lake Dock Co. v. Messinger Bearing Corp.
577 A.2d 631 (Supreme Court of Pennsylvania, 1990)
Jenkins v. Bolla
600 A.2d 1293 (Superior Court of Pennsylvania, 1992)
Dodson v. Elvey
665 A.2d 1223 (Superior Court of Pennsylvania, 1995)
Marks v. Tasman
589 A.2d 205 (Supreme Court of Pennsylvania, 1991)
Garcia v. Savage
586 A.2d 1375 (Superior Court of Pennsylvania, 1991)
Dibble v. Security of America Life Insurance
590 A.2d 352 (Superior Court of Pennsylvania, 1991)

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Bluebook (online)
37 Pa. D. & C.4th 330, 1997 Pa. Dist. & Cnty. Dec. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowers-v-gillin-pactcomplcambri-1997.