J-A19043-19
2019 PA Super 353
CAROL EVANS : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : TRAVELERS INSURANCE COMPANY : No. 2531 EDA 2018
Appeal from the Order Entered August 14, 2018 In the Court of Common Pleas of Wayne County Civil Division at No(s): 531-Civil-2016
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 04, 2019
Appellant Carol Evans appeals the order of the Court of Common Pleas
of Wayne County entering summary judgment in favor of Appellee Travelers
Insurance Company (“Travelers”). The trial court concluded that summary
judgment was warranted as it found that Evans failed to produce evidence of
a fact essential to her cause of action: whether her Post-Traumatic Stress
Disorder (PTSD) resulted from bodily harm sustained in the motor vehicle
accident at issue. We reverse and remand for further proceedings.
On September 17, 2014, Evans was traveling southbound in her
Chrysler PT Cruiser in the left passing lane of Interstate 476 (I-476 or the
Pennsylvania Turnpike) near Kidder Township, Carbon County.1 At that time, ____________________________________________
1 Evans’ complaint indicates that she was driving in a “generally northerly direction” on I-476 when the accident occurred. Compl. at ¶ 3. However, at a subsequent deposition, Evans indicated that she was driving southbound on I-476 from Scranton to Jim Thorpe when the accident occurred. Evans
____________________________________ * Former Justice specially assigned to the Superior Court. J-A19043-19
Rodolfo Hudson was traveling southbound in a tractor-trailer in the right lane
of I-476. At some point, Hudson attempted to move his tractor-trailer to the
left passing lane and violently collided with Evans’ vehicle. Compl. at ¶ 1-5;
Evans Deposition (“Dep.”), December 14, 2017, at 15.
This forceful impact cracked Evans’ windshield, broke the passenger side
mirror off her vehicle, smashed her passenger side windows, caused broken
glass to fly into the vehicle, and pushed Evans’ entire vehicle to the left
towards the concrete barrier. Evans regained control of her vehicle and pulled
over to the right side of the interstate. Hudson pulled over his tractor-trailer,
and both parties waited for emergency personnel to arrive. Dep. at 14-17.
While Evans felt pain in her head and neck immediately after the
accident, she did not initially seek medical care but instead took generic pain
medications. Id. at 19. Evans’ pain in her head and neck escalated, and she
began to experience dizziness in the week following the accident. Id. at 19-
22. Her husband insisted that she get treatment at a local hospital. Id. at
22. Evans subsequently reported various symptoms including persistent
headaches and neck pain, dizziness, balance issues, fogginess of her mental
processes, extreme exhaustion, nightmares, flashbacks, and panic attacks.
Id. at 23-25, 34-37, 40-46, 56-69, 73-75.
____________________________________________
Deposition (“Dep.”), December 14, 2017, at 15. This inconsistency does not affect our conclusion in this case.
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Thereafter, Evans submitted to extensive medical testing, received
injections into her cervical spine to alleviate pain, underwent physical therapy
and rehabilitation to regain balance and address issues with cognition, and
was prescribed multiple medications for pain, dizziness, and emotional
distress. Dep. at 23-28, 32-34, 52-69. Several months after the collision,
beginning in February 2015, Evans was evaluated and treated by psychiatrist
Dr. Matthew Berger for PTSD. Id. at 34-37.
It is undisputed that Evans was treated for “injuries to her neck and
thoracic spine with radiculopathy,” and head injuries that included
“concussion, closed head injury, post-concussion syndrome, vertigo, post-
traumatic vascular headac[h]es, post-traumatic vestibuloneuronitis, and/or
post-traumatic stress disorder (PTSD).” Compl. at ¶ 8. Evans indicated that
she was advised that her injuries “may be permanent in nature.” Id.
Evans submitted an application to her insurer, Travelers, for first party
benefits coverage under her automobile policy.2 The first party benefits
endorsement requires Travelers to pay “medical expenses” of an “insured who
sustains ‘bodily injury’ caused by an accident arising out of the maintenance
or use of a motor vehicle.” Endorsement, at 2 (some quotation marks
omitted). The endorsement defined “medical expenses” in part as “reasonable
and necessary charges incurred for … medical and rehabilitative services,
2 Evans also filed a separate third-party action against Hudson and other parties in federal court. It appears the outcome of that litigation was pending at the time that the lower court entered summary judgment in this case.
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including but not limited to … psychiatric, and psychological services.” Id. at
1. The endorsement defined “bodily injury” as “accidental bodily harm to a
person and that person’s resulting illness, disease, or death.” Id.
While Travelers initially paid for Dr. Berger’s treatment of Evans’ PTSD,
Travelers subsequently denied coverage for future treatment. Evans’ counsel
sent Travelers a letter from Dr. Berger, who indicated he was treating Evans
for PTSD related to the motor vehicle accident and that continued treatment
of Evans’ PTSD was “medically necessary.” Berger Letter, 8/26/15, at 1.
On October 7, 2015, Travelers’ claims representative, Kami Hause,
indicated that, while Travelers did not dispute that Evans sustained physical
injuries in the accident, Travelers claimed Evans’ PTSD does not constitute
“bodily injury” as defined by the endorsement. Hause Letter, 10/7/15, at 1.
Hause asserted that the endorsement’s definition of bodily injury was identical
to the policy language in Zerr v. Erie Ins. Exchange, 667 A.2d 237
(Pa.Super. 1995), in which this Court determined that emotional or mental
injuries were not covered under that definition of bodily injury, unless they
were caused by a physical injury. Hause Letter, 10/7/15, at 1.
Evans filed this cause of action in the Court of Common Pleas of Wayne
County, arguing that Travelers breached the parties’ insurance contract.3,4
3 Evans is a resident of Wayne County, Pennsylvania. 4 In her complaint, Evans also contended that Travelers’ conduct and actions
constituted bad faith in violation of 42 Pa.C.S.A. § 8371. After Travelers’ filed preliminary objections, the parties entered a stipulation that the bad faith count would be stricken from the complaint. Stipulation, 5/1/17, at 1.
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Evans’ complaint alleges that “Travelers acted with no reasonable foundation
in refusing to pay first party benefits when due, with respect to the unilateral
denial of payment for treatment of head and neck injuries and sequelae of
same, including psychological, neuropsychological, and/or emotional
manifestations.” Compl. at ¶ 36 (emphasis added). In its answer and new
matter, Travelers asserted that “[t]he subject Travelers Policy and
Pennsylvania case law bar coverage for emotional and mental injuries which
are not caused by physical injury.” Answer at ¶ 47.
On May 30, 2018, Evans filed a Motion for Partial Summary Judgment,
arguing that she was entitled to receive first party benefits for the treatment
of her PTSD, which she sustained in the accident with concomitant physical
injuries. Evans also argued that Travelers’ strict interpretation of the policy
conflicted with the Motor Vehicle Financial Responsibility Law (MVFRL) and
violated public policy. On the same day, Travelers filed a Motion for Summary
Judgment, claiming Evans was not entitled to receive coverage for treatment
for PTSD, which did not result from the physical injuries she sustained in the
collision as required by policy language.
In an opinion and order entered August 14, 2018, the trial court granted
summary judgment in favor of Travelers, denied Evans’ motion for summary
judgment, and dismissed Evans’ complaint with prejudice. Specifically, the
trial court found that Travelers was entitled to summary judgment as Evans
“failed to produce evidence that her mental injuries resulted from her physical
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injuries, which is essential to the cause of action.” Trial Court Opinion
(T.C.O.), 8/14/18, at 5. This timely appeal followed.
Evans raises the following issues for our review on appeal:
I. Did the trial court err in granting [Travelers’] Motion for Summary Judgment, denying [Evans’] Motion for Partial Summary Judgment, and dismissing [Evans’] Complaint when there was no genuine issue or dispute of material fact that [Evans] suffered concomitant physical injuries, in addition to her psychiatric injuries, as a result of the motor vehicle collision at issue; psychiatric services were a covered first party medical expense pursuant to her policy with [Travelers]; and [Travelers] based their denial and the trial court based its opinion solely upon the case of Zerr v. Erie Ins. Exchange, 667 A.2d 237 (Pa.Super. 1995)?
II. Did the trial court err in granting [Travelers’] Motion for Summary Judgment, denying [Evans’] Motion for Partial Summary Judgment, and dismissing [Evans’] Complaint when [Travelers’] and the trial court’s interpretation of the policy language at issue and Zerr impermissibly conflicts with the provisions of the MVFRL and violates public policy?
Evans’ Brief, at 4.
In reviewing a trial court’s order granting summary judgment, we are
guided by the following principles:
When a party seeks summary judgment, a court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only when the right to such a judgment is clear and free from doubt. An appellate court may reverse the
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granting of a motion for summary judgment if there has been an error of law or an abuse of discretion.
Gallagher v. GEICO Indem. Co., ___Pa.___, 201 A.3d 131, 136–37 (Pa.
2019) (citations omitted).
In interpreting the language of an insurance policy, we recognize that:
we must apply general principles of contract interpretation, as, at base, an insurance policy is nothing more than a contract between an insurer and an insured. 401 Fourth St., Inc. v. Inv'rs Ins. Grp., 583 Pa. 445, 879 A.2d 166, 171 (2005). In so doing, we must “ascertain the intent of the parties as manifested by the terms used in the written insurance policy.” Id. Just as in statutory construction, “[w]hen the language of the policy is clear and unambiguous, a court is required to give effect to that language.” Id. Importantly, however, provisions of insurance contracts are invalid and unenforceable if they conflict with statutory mandates because contracts cannot alter existing laws. Prudential Prop. & Cas. Ins. Co. v. Colbert, 572 Pa. 82, 813 A.2d 747, 751 (2002).
Gallagher, 201 A.3d at 137.
Evans first argues that the trial court erred in determining that
treatment for PTSD that she sustained in the accident is not covered under
her policy with Travelers. Evans argues that her PTSD and other mental
injuries, sustained with concomitant physical injuries, constitute “bodily
injury” under the policy language. Evans also contends that the trial court
erred in finding that this case was controlled by this Court’s prior decision in
Zerr, which Evans argues is distinguishable.
In Zerr, the insured was traveling on the Pennsylvania Turnpike and
was forced to swerve off the road after a tractor-trailer attempted to change
lanes too quickly in front of the insured’s vehicle. However, “the two vehicles
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never made contact with one another, and Mr. Zerr suffered no physical harm
at the scene.” Zerr, 667 A.2d at 237. Zerr sought first party benefits under
his own policy for coverage for PTSD, globus hystericus, anxiety attacks,
driving phobia, and numerous physical symptoms, which he alleged, were
caused by his emotional experience on the highway. The insurer, Erie, denied
responsibility to pay benefits for Zerr’s emotional injuries, as Zerr suffered no
physical injuries at the time of the incident. Zerr’s policy contained an
identical definition of bodily injury: “accidental bodily harm to a person and
that person’s resulting illness, disease, or death.” Id. at 238.
A three-judge panel of this Court affirmed the trial court’s decision to
grant Erie’s preliminary objections in the nature of a demurrer. Even though
Zerr had reported physical manifestations of his emotional distress, this Court
found Zerr had not sustained a “bodily injury” as defined by his policy or the
MVFRL as his “injury did not result in an illness, but rather his illness resulted
in a bodily injury.” Id. at 239. Further, the Zerr Court reasoned that
neither the legislature nor the Pennsylvania Supreme Court has yet to erect a bridge between bodily injury and mental injury, in the context of automobile insurance law; that is, a distinction between physical and psychological maladies remains, such that one who suffers psychological illness cannot successfully claim benefits under the MVFRL for “injury.”
Id. at 240. Thus, the Zerr Court concluded that “the law states with certainty
that no recovery is possible, by means of the MVFRL or [the insured’s] policy,
for mental injury which is not the result of a bodily injury.” Id. (emphasis
added).
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However, while the Zerr court held that an individual who suffers
psychological illness cannot successfully claim benefits under the MVFRL for
“injury,” this Court held, in a different context, that a plaintiff who exhibited
“symptoms of severe depression, nightmares, stress and anxiety, requiring
psychological treatment, and ... ongoing mental, physical and emotional
harm,” sufficiently set forth physical manifestations of emotional distress or
physical harm to support an action for negligent infliction of emotional distress
(NIED). Love v. Cramer, 606 A.2d 1175, 1179 (Pa.Super. 1992).
This Court has also determined that a plaintiff sufficiently established
that she sustained physical harm as a result of emotional distress as she
experienced “knots” in her stomach, nightmares, low self-esteem, was easily
frightened, and suffered major depression, for which she sought professional
counseling for ongoing mental and physical harm. Brown v. Phila. Coll. of
Osteopathic Med., 674 A.2d 1130, 1137 (Pa.Super. 1996). See also
Schmidt v. Boardman Co., 608 Pa. 327, 382, 11 A.3d 924, 958 (2011)
(Baer, J., concurring) (asserting that the appellees’ physical manifestations of
emotional trauma, which resulted from witnessing harm to a close relative,
constituted “physical harm” or “physical injury” as contemplated by the
Restatement (Second) of Torts Section 402A).5
5 Evans asks that this Court consider as persuasive authority the non- precedential decision in Lipsky v. State Farm Mut. Auto. Ins. Co., 565 EDA 2010 (Pa.Super. September 1, 2011) (unpublished memorandum). Although Pa.R.A.P. 126 was recently amended to allow parties to rely on non-
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In applying these concepts to the contractual language at issue in this
case, we observe that, in addition to her diagnosis of PTSD, Evans reported
numerous physical manifestations of her emotional distress, including:
persistent headaches, dizziness, balance issues, fogginess of her mental
processes, extreme exhaustion, nightmares, flashbacks, and panic attacks.
Moreover, there is no dispute that Evans sustained physical injury to her
head and neck as a result of this violent collision. Nevertheless, the trial court
relied on Zerr to conclude that Evans’ PTSD did not constitute “bodily injury”
that her policy defined as “accidental bodily harm to a person and that
person’s resulting illness, disease, or death.”
While this Court is bound by precedent in Zerr which provides that
physical manifestations of emotional distress cannot constitute “bodily harm”
as defined by the policy language at issue and the MVFRL,6 Zerr is
distinguishable as Zerr’s claim for coverage was based solely on emotional
injury without any accompanying physical injury whereas it is undisputed that
Evans suffered both physical injuries and emotional distress (including PTSD)
in her accident. Pursuant to Zerr, Evans is entitled to benefits under her
policy if the physical harm she sustained in the accident resulted in an illness.7
precedential unpublished decisions of this Court as persuasive authority, this amendment only applies to decisions filed after May 1, 2019. As the Lipsky decision was filed on September 1, 2011, this unpublished memorandum cannot serve as persuasive authority. 6 Commonwealth v. Karash, 175 A.3d 306, 307 (Pa.Super. 2017) (“a panel
of this Court cannot overrule the decision by another panel”). 7 The parties do not dispute that PTSD constitutes an “illness.”
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When reviewing the record in the light most favorable to Evans and
resolving all doubts as to the existence of a genuine issue of material fact
against Travelers, we reject the trial court’s conclusion that summary
judgment was warranted based on its finding that Evans “failed to produce
any evidence that her mental injuries resulted from her physical injuries.”
T.C.O. at 5. Evans has presented evidence to support her claim that her PTSD
resulted from not only from experiencing the traumatic collision but also from
her physical injuries which caused Evans continuous physical pain, affected
her physical and emotional well-being, and required extensive medical testing,
treatment, and rehabilitation over a period of several years. Evans asserted
that she still was experiencing continuous neck pain on the day of her
deposition, over three years after the accident.
We reject the trial court’s conclusion that the record shows Evans’ PTSD
and mental injuries were solely caused by the accident and could not have
been caused in part by her physical injuries, which are closely related and
seemingly intertwined. While the trial court found that Evans’ deposition
testimony “indicates more definitively that her mental injuries resulted from
the accident itself,” Evans’ testimony did not foreclose the possibility that her
PTSD was also caused by the physical injuries. In Evans’ deposition, opposing
counsel did not make any inquiry to determine whether Evans’ physical
injuries had caused her emotional distress.
In the same manner, we disagree with the trial court’s suggestion that
Evans’ treating psychiatrist, Dr. Berger, concluded that Evans’ PTSD was
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solely caused by experiencing the accident. The record contains a one-
paragraph letter from Dr. Berger to Travelers which states that Evans “suffers
from PTSD “related to a motor vehicle accident that occurred in September of
2014.” Berger Letter, 8/26/15, at 1. The only conclusion Dr. Berger makes in
the letter is that his assertion that Evans’ “medications and her continued
treatment in our office are medically necessary and indicated to help reduce
her symptoms of PTSD.” Id. at 1.
As a result, the record does not conclusively show that Evans’ PTSD and
mental injury was solely caused by the accident as there is evidence that her
emotional trauma was intertwined with or related to her physical injuries.
As such, we find there is a genuine issue of a material fact as to a
necessary element of the cause of action: whether Evans’ PTSD and other
mental injury was caused by her bodily harm sustained in the accident.
Accordingly, the trial court erred in entering summary judgment in favor of
Travelers.
Evans also argues that the trial court’s interpretation of the policy in this
case conflicts with the MVFRL and violates public policy. More specifically,
Evans asserts that the trial court’s interpretation of the policy at issue results
in “illusory coverage,” as she alleges that she was denied coverage even
though she paid additional premiums for Added Party Benefits.
Evans points out that, while her policy set forth the minimum limit of
liability for Basic First Party Benefits at $5,000 for Basic “Medical Expenses,”
the first party benefits endorsement allowed the insured to pay additional
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premiums for several options that would require Travelers to provide Added
Party Benefits. Evans emphasizes that she paid additional premiums to
receive “Increased Medical Expenses,” in which Travelers’ limit of liability was
raised to $100,000.
We are not persuaded by Evans’ claim that she is entitled to payment
for her psychiatric treatment based on her payment of additional premiums
for Added Party Benefits. As noted above, the endorsement defines “medical
expenses” in part as, “reasonable and necessary charges incurred for …
medical and rehabilitative services, including but not limited to … psychiatric,
and psychological services.” Endorsement, at 1. The endorsement provides
that Travelers would pay for “medical expenses” for an insured who sustains
“bodily injury” arising out of the maintenance or use of a motor vehicle.
As noted above, Evans’ policy contains consistent definitions of bodily
injury as those at issue in Zerr and in the MVFRL, which defines “bodily injury”
as “accidentally sustained bodily harm to an individual and that individual's
illness, disease or death resulting therefrom.” 75 Pa.C.S.A. § 1702. We
reiterate that this Court is bound by this Court’s interpretation of the identical
definition of “bodily injury” as set forth in Zerr.
Evans did not pay additional premiums for “illusory coverage,” but
instead chose to pay additional premiums for the option of “Increased medical
expenses,” which raised Travelers’ limit of liability to provide coverage for the
insured’s “bodily injury” from $5,000 to $100,000. Endorsement, at 2. It is
inconsequential that Evans chose to pay for such Added Party Benefits, as it
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did not relieve Evans of the requirement that she show that she sustained
“bodily injury” in her motor vehicle accident, which we have addressed above.
Evans does not develop any argument to support her claim that the payment
of additional premiums allowed her access to coverage for psychiatric
treatment that was unavailable otherwise.
However, in light of our previous discussion, we find that a genuine issue
of material fact exists as to whether Evans’ PTSD resulted from her bodily
harm that she sustained in the motor vehicle accident at issue. As this issue
can be explored further on remand, we conclude that the trial court erred in
granting summary judgment in favor of Travelers. We reverse the trial court’s
order granting summary judgment in favor of Travelers and remand for further
proceedings.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/4/19
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