DiVittore v. State Farm Mutual Automobile Insurance

42 Pa. D. & C.3d 638, 1985 Pa. Dist. & Cnty. Dec. LEXIS 53
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedJune 24, 1985
Docketno. 4244 S 1982
StatusPublished

This text of 42 Pa. D. & C.3d 638 (DiVittore v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiVittore v. State Farm Mutual Automobile Insurance, 42 Pa. D. & C.3d 638, 1985 Pa. Dist. & Cnty. Dec. LEXIS 53 (Pa. Super. Ct. 1985).

Opinion

LIPSITT, J.,

“Like a good neighbor, State Farm is there,” proclaims the corporate [639]*639motto of defendant, State Farm Mutual Automobile Insurance Company. In this case, however, State Farm is here in court contesting the claim for “attendant care,” brought on behalf of Holly DiVittore, plaintiff who sustained permanently damaging head trauma when she was hit by an automobile while jogging on the Capitol Campus of the Pennsylvania State University one evening in November of 1979. Following a non-jury trial in which a verdict was rendered for plaintiff, State Farm has moved for post-verdict relief.

The issue is a novel one arising under Pennsylvania’s No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. §1009.101 et seq., repealed by the Act of Feburary 12, 1984, P.L. 26, 75 Pa.C.S. §1701 et seq. The question is whether “attendant care” (as further described herein) prescribed by a physician for the rehabilitation of a brain-injured patient is contemplated by the No-fault Act’s definition of “medical and vocational rehabilitation services” in section 103, or whether such care is primarily custodial and therefore not the responsibility of State Farm. The full court unanimously agrees with the trial judge’s conclusion that attendant care is rehabilitative and not merely custodial. Therefore, State Farm’s motion will be denied and the verdict will be affirmed.

Holly DiVittore suffered a closed head injury, or cerebral concussion, and was diagnosed as having diffuse bilateral cerebral dysfunction with severe cognitive defects. As a result of the permanent organic damage to her brainy Holly is impaired in her selective attention to the basic task of independent living, and her performance of the activities of daily living is complicated by a lack of organization, with deficits in spatial orientation and short-term memory. Cognitive or intellectual skills and motor func[640]*640tions together represent the area of greatest disability, and Holly needs structured verbal and written cues in order to carry out simple tasks such as preparing food.

Holly can carry out appropriate automatic activities in her home setting with the attendant care now provided by her mother and father, but she has very shallow recall of what she is doing and demonstrates a lack of insight into her condition, although shé can verbalize somewhat about how she was before the accident, and it upsets her. She seems to require constant direction and prompting in order to perform even the simplest daily tasks, and therefore requires constant observation and reinforcement of her environment. Although Holly’s compensating skills to adapt to the permanent damage have more or less plateaued, without significant change over six months, further therapy is prescibed as needed on all levels to maintain her current functioning and basic living skills. See Complaint, Exhibits C and F.

William M. Gibson, M.D. is the Executive Director of the Elizabethtown Hospital for Children and Youth, where he leads the Head Trauma Team which treated Holly DiVittore when she was transferred there in a partially comatose state. His team continued to follow her progress as an outpatient with active occupational and speech therapies directed at improvement of her language skills, organization of self-care tasks and identification of objects. As early as May of 1982, Doctor Gibson recommended, among other things, for Holly to move from the present dependence on her mother and to explore other community-based resources requires the employment of a trained attendant for medical rehabilitation. Such an individual is paramount if Holly is to remain at home and achieve [641]*641transition to a workshop setting. This person is also required to increase basic living skills where ultimately Holly would be able to function in a supervised or transitional living setting (e.g., group home or community-based apartment).

In summary, the extent of the residual disability secondary to the head trauma suffered by Holly DiVittore presents critical long-term management needs where both the clients’ rights and the family rights should be considered in the decision process. Complaint, Exhibit C, pp. 4-5. Doctor Gibson also testified at trial, providing the medical background on which the court’s findings are based, as well as the advocacy for the rights of the disabled which compels the court’s conclusions.

■ State Farm’s first argument, unsupported by any expert medical testimony, is that attendant-care services for Holly are not “necessary to reduce disability and to restore her physical, psychological, and vocational functioning,” and therefore not compensable as “medical and vocational rehabilitation services” defined in section 103 of the No-fault Act. Much emphasis is placed on the fact that Holly’s compensating skills to adapt to her disability have more or less plateaued, and the “slight improvement” in her condition from constant attendant care is said to be insufficient to qualify that care as medical and vocational rehabilitative services. Because Holly’s physical, psychological, social and vocational functioning will never be restored to the point where she can become a self-supporting member of society, State Farm denies liability for' attendant care. This argument is flawed in numerous respects.

Although the physical damage to Holly’s brain tissue is permanent, and her compensating skills have [642]*642plateaued, it does not follow that attendant care will not contribute substantially to her rehabilitation by reducing her disability and restoring her functioning. As State Farm recognizes, there will be gradual and “small” or “slight” improvements in Holly’s ability to function with attendant care, and the principal effect of that care will be to prevent her from regressing rapidly in her development to an infantile stage of performance. With constant structure and rehearsal provided by an attendant, the quality of Holly’s life will continue to improve and she will be spared the vegetative existence of living in a cocoon that will undoubtedly follow if she is allowed to slide down the “mirror image” of her development curve. '

Of course, Holly has received attendant care from her parents, working closely with the therapists at Elizabethtown Hospital under the direction of Doctor Gibson’s Head Trauma Team, but the impact on the family as primary caregivers has been a considerable amount of emotional stress and a complete loss of time which the DiVittores once had to themselves. In ascertaining the legislative intent of the No-fault Act, the court is properly guided by an enlightened consideration of the fundamental human rights of Holly as distinct from those of her family. Such a holistic analysis of developmental disabilities has been explicitly recognized as our national policy. See 42 U.S.C. §§6000(b)(l), 6001(7), 6010. This view is also consistent with the policy of the No-fault Act to provide for the “maximum feasible restoration of all individuals injured ... in motor vehicle accidents” so that Holly can “receive prompt and comprehensive professional treatment, and be rehabilitated to the point where she can return as a useful member of society and a self-respecting and [643]*643self-supporting citizen.” 40 P.S. §§1009.102(a)(3) and (a)(9).

The Superior Court has ascribed a broad meaning to the term “rehabilitate”: to restore to a condition of health or useful and constructive activity. Brenna v.

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Bluebook (online)
42 Pa. D. & C.3d 638, 1985 Pa. Dist. & Cnty. Dec. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/divittore-v-state-farm-mutual-automobile-insurance-pactcompldauphi-1985.