Carroll v. Kephart

35 Pa. D. & C.4th 30, 1997 Pa. Dist. & Cnty. Dec. LEXIS 103
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedJuly 16, 1997
Docketno. 95-273
StatusPublished

This text of 35 Pa. D. & C.4th 30 (Carroll v. Kephart) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carroll v. Kephart, 35 Pa. D. & C.4th 30, 1997 Pa. Dist. & Cnty. Dec. LEXIS 103 (Pa. Super. Ct. 1997).

Opinion

BRADLEY, J.,

Plaintiffs appealed from the jury verdict awarding plaintiff Brian Carroll $20,225 ($13,725 for medical expenses and $6,500 for pain and suffering) and plaintiff Margaret Carroll $7,500. This court denied plaintiffs’ post-trial motion for a new trial. This appeal followed.

On October 30, 1993, plaintiffs Margaret and Brian Carroll were rear-ended by defendant Rosalie Kephart. As a result of the collision, Brian Carroll struck his head on the dashboard and his mother, Margaret Carroll, was whiplashed and hit her head on the headrest.

Since the defendant admitted liability, the only issue to be resolved at trial was damages. Plaintiff’s chiropractor testified at trial that Margaret Carroll strained and sprained her neck and shoulder as a result of the accident. Brian Carroll’s injuries were allegedly more extensive. Plaintiff argued that Mr. Carroll suffered a closed head injury which caused him to suffer temporary memory loss, dizziness or vertigo and severe headaches which caused him to do poorly in school and to become extremely unmotivated and lazy.

Plaintiffs argue by way of their statement of matters complained of on appeal that this court erred by: (1) [32]*32excluding Margaret Carroll’s lost wages from being admitted as evidence of damages, (2) denying a new trial based on inadequate damages for Brian and Margaret Carroll, (3) denying plaintiffs’ petition for delay damages and (4) not striking defendant’s post-trial response and brief. These issues will be addressed accordingly.

I.

First, plaintiffs complain that this court erred by excluding Mrs. Carroll’s loss of wages as evidence of damages and that this preclusion was prejudicial. As a result of the accident, Mrs. Carroll lost time from work as a bus driver. However, during this time she received sick pay from her employer. She failed to purchase income loss protection in her insurance policy. Therefore, the issue presented is: whether the failure to purchase that option precludes the recovery of wage loss from a tort-feasor, where the victim receives employer-paid sick leave. Section 1722 of the Motor Vehicle Financial Responsibility Act provides:

“In any action for damages against a tort-feasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719.” 75 Pa.C.S. §1722. (emphasis added)

[33]*33Under this section, Margaret Carroll is precluded from recovering loss of wages from the tort-feasor, Rosalie Kephart. Margaret Carroll was eligible to receive income loss benefits1 and chose not to purchase that insurance.

Plaintiffs urge that this court is bound by Panichelli v. Liberty Mutual Insurance Group, 543 Pa. 114, 669 A.2d 930 (1996), and Browne v. Nationwide Mutual Insurance Co., 449 Pa. Super. 661, 674 A.2d 1127 (1996), and, therefore, this court must permit plaintiff to recover her lost wages from the defendant. In Panichelli, the Pennsylvania Supreme Court held that an insurer cannot reduce payments to an insured by the amount of sick pay and Social Security the insured received. Id. at 118, 669 A.2d at 933. The court placed emphasis on the fact that the plaintiff-insured paid for those benefits through payroll deductions and paid his insurance premiums and, therefore, he was entitled to double recovery. Relying on Panichelli, the court in Browne held Social Security received by the plaintiff-insured did not entitle the defendant-insurer to offset their payments by the amount received. Id. at 663, 674 A.2d at 1129. The court reasoned section 1722 did not apply to Social Security, since Social Security was never subject to subrogation and did not fall within the purview of section 1722.2

[34]*34However, this court finds sick pay, the type of benefit bestowed upon Margaret Carroll, falls within section 1722. Accordingly, she cannot “double dip” by receiving sick pay and recover the same damages from the defendant. Section 1722 was intended to prevent this situation from occurring where Mrs. Carroll chose not to purchase income loss protection insurance and paid less money. Furthermore, the facts of this case are distinguishable from those in Panichelli and Browne which involved an insured claiming first party benefits from their respective insurance carrier. See DeVita v. Durst, 167 Pa. Commw. 105, 647 A.2d 636 (1994).

II.

Plaintiffs’ next argument is that this court erred by not granting plaintiffs a new trial based on inadequacy of the verdict. Where the trial court has refused to grant relief for an inadequate verdict, the appellate court will not grant a new trial without a clear abuse of discretion. DeVita v. Durst, supra. A jury verdict is set aside as inadequate when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994). Where the jury’s verdict is so contrary to the evidence as to “shock one’s sense of justice” a new trial should be awarded. Id. at 225, 648 A.2d at 3. Margaret Carroll’s [35]*35award of $7,500 and Brian Carroll’s award of $20,225 does not “shock” this court’s “sense of justice” and, therefore, plaintiffs’ motion for new trial was properly denied.

Plaintiffs argue that the jury verdict for Brian Carroll was inconsistent because his award of complete medical expenses, $13,725, justified pain and suffering damages greater than the verdict of $6,500. As a result of the accident, Brian Carroll allegedly suffered closed head injuries causing him to lose memory and to do poorly in school. However, defendant’s expert testified that the data was insufficient to determine if the accident caused Brian’s poor academic achievement. (N.T. 9/18/96 pp. 166-67.) Brian had poor grades prior to the October 30 accident. Furthermore, Brian was in five ski accidents prior to this incident which may have caused some of his injuries. (N.T. 9/17/96 pp. 215-16.)

Additionally, the extent of Brian’s closed head injury was vigorously disputed at trial. Plaintiff’s own expert testified that Brian had no complaints of a head injury at the hospital following the accident. (N.T. 9/18/96 p. 32.) In fact, there was testimony that the defendant was only traveling five miles per hour when the defendant hit the plaintiffs’ car. (N.T. 9/18/96.) Mr.

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Related

Kiser v. Schulte
648 A.2d 1 (Supreme Court of Pennsylvania, 1994)
DeVita v. Durst
647 A.2d 636 (Commonwealth Court of Pennsylvania, 1994)
Panichelli v. Liberty Mutual Insurance Group
669 A.2d 930 (Supreme Court of Pennsylvania, 1996)
Browne v. Nationwide Mutual Insurance
674 A.2d 1127 (Superior Court of Pennsylvania, 1996)
Catalano v. Bujak
642 A.2d 448 (Supreme Court of Pennsylvania, 1994)
Craig v. Magee Memorial Rehabilitation Center
515 A.2d 1350 (Supreme Court of Pennsylvania, 1986)

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Bluebook (online)
35 Pa. D. & C.4th 30, 1997 Pa. Dist. & Cnty. Dec. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-kephart-pactcompldelawa-1997.