Gemmell v. Barrett

35 Pa. D. & C.4th 38
CourtPennsylvania Court of Common Pleas, Indiana County
DecidedNovember 3, 1997
Docketnos. 11428 and 11928 CD 1994
StatusPublished

This text of 35 Pa. D. & C.4th 38 (Gemmell v. Barrett) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Indiana County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gemmell v. Barrett, 35 Pa. D. & C.4th 38 (Pa. Super. Ct. 1997).

Opinion

RUDDOCK, P.J.,

This matter comes before the court on defendants’ and additional defendants’ motions for partial summary judgment. For the reasons stated herein, defendants’ and additional defendants ’ motions for partial summary judgment are denied.

FACTS

Robert E. Gemmell, plaintiff, and Kearney C. Gallina were involved in a two-vehicle collision with a coal truck on August 3, 1993. Plaintiff, the passenger in the vehicle being driven by Mr. Gallina, sustained serious injuries1 and was subsequently life-flighted to Allegheny General Hospital.

On or about July 22, 1994, plaintiff filed a complaint asserting negligence on the part of the operator of the coal truck, Melvin William Strawcutter, and his employers and owners of the track, Agatha R. Barrett and Richard Barrett, defendants. Defendants filed their answer and [40]*40new matter as well as a complaint to join the driver, Kearney C. Gallina, to the action. A complaint was also filed by Kearney C. Gallina, and his parents Carmen and Ann Gallina against the defendants at no. 11928 CD 1994. The two actions have been consolidated for trial. The Commonwealth of Pennsylvania, Department of Transportation has been joined as an additional defendant.

After discovering that Mr. Gemmell held a limited tort coverage policy through State Farm Insurance which could limit plaintiff’s recovery for damages, defendants filed motions for partial summary judgment.

In the motions for summary judgment, the defendants and additional defendants allege in their respective motions that the Motor Vehicle Financial Responsibility Act limits any possible recovery of the plaintiffs to medical and other out-of-pocket expenses only because the plaintiff is not suffering from a serious impairment of a bodily function and/or a permanent serious disfigurement. The defendants and additional defendants maintain that reasonable minds could not differ on this issue and thus, partial summary judgment should be entered in their favor with respect to plaintiffs’ claim for pain and suffering and other noneconomic damages.

Plaintiffs assert that the injuries suffered do amount to both permanent serious disfigurement with respect to facial lacerations that have left scars on plaintiff’s face; as well as serious impairment of bodily function due to the plaintiff’s broken left femur. Plaintiffs maintain that there is a valid claim for pain and suffering and other noneconomic damages.

After careful consideration of the evidence in the record and after hearing arguments on the matter, the court denies defendants’ motion for summary judgment.

APPLICABLE LEGAL STANDARD

Summary judgment is appropriate only where it is clear and free from doubt that “the pleadings, depo[41]*41sitions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b), 42 Pa.C.S.; Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991). The moving party has the burden of proving that no genuine issue of material fact exists. Id. at 135, 589 A.2d at 206. In determining whether summary judgment is proper, “the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom.” Banker v. Valley Forge Insurance Co., 401 Pa. Super. 367, 373, 585 A.2d 504, 507 (1991). Finally, a court’s function in a summary judgment proceeding “is not to determine the facts, but only to determine if a material issue of fact exists.” Id. In addition, when “a motion for summary judgment has been made and properly supported, parties seeking to avoid imposition of summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial.” Marks, supra at 135, 589 A.2d at 206, citing Oberly v. Cass, 382 Pa. Super. 108, 554 A.2d 970 (1989) and Tom Morello Construction Co. Inc. v. Bridgeport Federal Savings and Loan Association, 280 Pa. Super. 329, 421 A.2d 747 (1980).

DISCUSSION

The Motor Vehicle Financial Responsibility Law of Pennsylvania gives individuals the right to choose between full tort coverage or limited tort coverage.2The [42]*42limited tort coverage option allows insurance companies to offer coverage at a reduced rate in exchange for the insured individuals giving up their right to sue for noneconomic damages resulting from an automobile accident. If a “serious injury” is in fact sustained, the above cited limitation does not apply and the insured individual may sue for noneconomic damages. 75 Pa.C.S. § 1705(d). “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.

As stated above, plaintiffs were covered by State Farm Insurance Company under a limited tort coverage policy. Thus, plaintiffs are statutorily prohibited from recovering damages for noneconomic damages unless it is found that his injuries come within the scope of the definition of “serious injury” under section 1702.

On a motion for summary judgment, it is the judge and not the jury that makes an initial determination as to whether a serious injury has been suffered by a plaintiff. Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), appeal granted, 544 Pa. 608, 674 [43]*43A.2d 1072 (1996). Although the procedure outlined below pertains to serious impairment of body function, the Dodson court noted that the procedure is equally applicable to “permanent serious disfigurements.” Id.

The Superior Court, in Dodson, held that a court, when determining whether an individual has suffered a serious impairment of body function, must determine two things, (1) whether the plaintiff, as the moving party, has shown that he has suffered a serious impairment of a body function, or in the alternative, whether the defendant, as the moving party, has shown that the plaintiff has not suffered a serious impairment of a body function, and (2) whether a genuine issue of material fact exists for the jury. Id. at 494, 665 A.2d at 1231; Curran v. Children’s Service Center Inc., 396 Pa. Super. 29, 578 A.2d 8 (1990). Additionally, the Dodson court adopted various factors previously set forth in the Michigan case of DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986), to determine whether a person has in fact suffered a serious impairment of body function. Id.

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Related

Banker v. Valley Forge Insurance
585 A.2d 504 (Superior Court of Pennsylvania, 1991)
DiFranco v. Pickard
398 N.W.2d 896 (Michigan Supreme Court, 1986)
Murray v. McCann
658 A.2d 404 (Superior Court of Pennsylvania, 1995)
Curran v. Children's Service Center of Wyoming County, Inc.
578 A.2d 8 (Supreme Court of Pennsylvania, 1990)
Overly v. Kass
554 A.2d 970 (Supreme Court of Pennsylvania, 1989)
Dodson v. Elvey
665 A.2d 1223 (Superior Court of Pennsylvania, 1995)
Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Ass'n
421 A.2d 747 (Superior Court of Pennsylvania, 1980)
Marks v. Tasman
589 A.2d 205 (Supreme Court of Pennsylvania, 1991)
Hames v. Philadelphia Housing Authority
696 A.2d 880 (Commonwealth Court of Pennsylvania, 1997)

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Bluebook (online)
35 Pa. D. & C.4th 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gemmell-v-barrett-pactcomplindian-1997.