Cadena v. Latch

78 A.3d 636, 2013 Pa. Super. 266, 2013 WL 5497793, 2013 Pa. Super. LEXIS 2702
CourtSuperior Court of Pennsylvania
DecidedOctober 4, 2013
StatusPublished
Cited by23 cases

This text of 78 A.3d 636 (Cadena v. Latch) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cadena v. Latch, 78 A.3d 636, 2013 Pa. Super. 266, 2013 WL 5497793, 2013 Pa. Super. LEXIS 2702 (Pa. Ct. App. 2013).

Opinion

OPINION BY

MUNDY, J.:

Appellant, Romeris Cadena, appeals from the October 1, 2012 order granting the motion for summary judgment filed by Appellee, James P. Latch, and dismissing all of Appellant’s claims with prejudice. After careful review, we reverse and remand for further proceedings.

The trial court summarized the relevant facts and procedural history of this case as follows.

[Appellant] filed a complaint for non-economic damages for injuries sustained in a motor vehicle accident on October 18, 2007. [Appellee] rear-ended [Appellant’s vehicle while she was in motion. [Appellant] alleged in the complaint that she suffered injuries, including but not limited to, disc injuries, and/or exacerbation thereof, nerve damages, cervical sprain and strain, cervical radiculitis, and lumbar radiculitis. Although she [637]*637complained about pain in her shoulder and chest, [Appellant] initially refused emergency treatment at the accident site. She believed that she did not feel hurt enough to call an ambulance; instead, she went home to bed. She went to the hospital the next day because she was not feeling any better. She was told to do the same things that she was told to do the day before and was sent home again. [Appellant] is an accountant and missed approximately one week of work. She is not seeking either a work loss claim or a claim for unpaid medical expenses.
In her deposition, [Appellant] testified that she never had any back pain, neck pain, left eye pain or shoulder problems before her accident; however, she suffered from these problems at various times after the accident. [Appellant] was in two prior accidents before the instant one. She skidded off the road and hit a tree in one accident and went off the road and got stuck in mud in another accident.
Prior to the accident, [Appellant] did not have a primary care physician. On October 20, 2007, she went to a doctor in Lebanon, Pennsylvania, who sent her to a Lebanon hospital for tests because her pain had increased. That hospital diagnosed her with cervical strain and a headache, told her to continue her pain medication, and prescribed bed rest for three days.
On November 29, 2007, [Appellant] went to an orthopedic doctor for left-sided head pain, eye pain, visual dysfunction, left shoulder pain, neck pain, headaches, sensitivity to bright lights during headaches, lower back pain, numbness, and tingling in the left arm. This doctor diagnosed her with cervical and lumbrosacral sprain and strain; cervical radiculitis, lumbar radiculitis, left shoulder contusion and impingement syndrome, and post-traumatic headaches. [Appellant] treated with him on five occasions, including her July 10, 2008 discharge. During that period [Appellant] went to ten physical therapy visits from November 27, 2007, through March 18, 2008. On discharge, the diagnosis was cervical radiculitis, lumbar ra-diculitis, bilateral C5 radiculopathy, left-sided C6 radiculopathy, L4-L5 radiculo-pathy, cervical sprain and strain, lum-brosacral sprain and strain, lumbar disc bulging, DJD, and multilevel lumbar HNP. Since her discharge from this doctor, [Appellant] has not sought additional treatment from him or any other doctor.
A cervical spine MRI study was performed on December 12, 2007, [and] revealed mild degenerative changes at C4-C5, C5-C6, and C6-C7. No traumatic injury was noted. A lumbar spine MRI study revealed a disc bulge and degenerative changes at 1-3-1-4, degenerative change with disc bulge and superimposed left paracentral herniation at 1-4-1-5, and likely impingement of the left L5 nerve roots in the lateral recess. No traumatic injury was noted.
A lower extremity EMG on December 18, 2007 was consistent with a left L5 radiculopathy. An upper extremity EMG study on May 16, 2008 was consistent with a bilateral C5 and left C6 radiculopathy, three months or older.
[Appellant] never refilled her pain medication. [Appellant] has no doctor appointments scheduled in the future. At her deposition on June 28, 2010, [Appellant] testified that her pain and headaches had decreased and her eyesight had improved. She took Motrin as needed for her shoulder pain. She gained approximately fifty pounds after the accident due to lack of activity and was depressed about the weight gain. [638]*638She was uncomfortable standing so she missed some of her children’s music presentations. A daughter went to live with her father because she was bored living with [Appellant] due to her lack of activity; however, [Appellant] went on vacations. [Appellant] was not as sexually active after the accident as she was before. She also did not drive as much in order to avoid possible pain.
[Appellant] had an independent medical examination in June 2011. This examination concludes that [Appellant] sustained a sprain of the facet joints of the cervical spine and lumbrosacral spine, as well as a strain of the para vertebral musculature involving the lumbar spine and cervical spine as a result of the accident. This report also states that [Appellant] had pre-existing degenerative changes in the cervical spine and lumbar spine, both involving the discs and facet joint. No permanent injuries were noted. The report concludes that [Appellant] has recovered from these injuries.

Trial Court Opinion, 2/8/13, at 1-4.

On September 11, 2009, Appellant began this action by filing a civil complaint alleging negligence. On October 22, 2009, Ap-pellee filed preliminary objections to Appellant’s complaint in the form of a motion to strike. The trial court entered an order sustaining Appellee’s preliminary objections on January 8, 2010, which struck paragraphs 6(h) and 6(j) from Appellant’s complaint. The parties entered into a stipulation to dismiss Appellee’s wife, Delores Latch, from the action on January 26, 2010. After discovery, on January 30, 2012, Appellee filed a motion for summary judgment. After both parties briefed their respective positions, the trial court held oral argument on the motion on September 4, 2012. On October 1, 2012, the trial court entered an order granting Appellee’s motion for summary judgment and dismissing all claims against Appellee with prejudice. On October 23, 2012, Appellant filed a timely notice of appeal.1

On appeal, Appellant raises three issues for our review.

I. Did [Appellee] meet his burden to prove that [Appellant] knowingly and intelligently waived full tort coverage by submitting only a certificate of coverage and relying upon an interrogatory that asked [Appellant] to make a legal conclusion?
II. Did the trial court err in awarding summary judgment to [Appellee] on the issue of whether [Appellant] sustained a serious injury where Pennsylvania law states that this is a jury question and [Appellant] submitted ample evidence that her injuries significantly limited almost every aspect of her daily life?
III. Did the trial court err in dismissing all of [Appellant’s claims on the ground that she did not sustain a serious injury when only [Appellant’s non-economic claims are barred?

Appellant’s Brief at 2.

We begin by noting our well-settled standard of review.

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Cite This Page — Counsel Stack

Bluebook (online)
78 A.3d 636, 2013 Pa. Super. 266, 2013 WL 5497793, 2013 Pa. Super. LEXIS 2702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cadena-v-latch-pasuperct-2013.