Tagliati v. Nationwide Insurance

720 A.2d 1051, 1998 Pa. Super. LEXIS 2821
CourtSuperior Court of Pennsylvania
DecidedOctober 6, 1998
StatusPublished
Cited by24 cases

This text of 720 A.2d 1051 (Tagliati v. Nationwide Insurance) 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
Tagliati v. Nationwide Insurance, 720 A.2d 1051, 1998 Pa. Super. LEXIS 2821 (Pa. Ct. App. 1998).

Opinion

JOYCE, Judge:

These consolidated appeals are from the final judgments entered in favor of Appellee, Nationwide Insurance Company (Nationwide) in connection with the underlying actions for payment of first party medical benefits brought by Appellants, Larry Tagliati, Jeffrey Funkhouser, Jacque Kennedy and Viola Howard, pursuant to their policies with Appellee. For the reasons set forth below, we vacate the judgments and remand for further proceedings consistent with this opinion. Before addressing the merits of Appellants’ claims, we will recount the pertinent facts of this case.

Each Appellant was injured in an automobile accident in 1987. Each was eligible for first party medical benefits arising under policies issued by Appellee. Appellants all received chiropractic treatment for their injuries. The chiropractors referred Appellants for thermographic studies for purposes of diagnosis and treatment. 1 Appellee refused to compensate Appellants for the cost of the thermographs.

Appellants thereafter instituted suit against Appellee to recoup payment for these expenses. The cases were consolidated for arbitration. Following an arbitration hearing in October, 1988, Appellants were awarded the cost of the thermography plus interest and attorneys’ fees. Appellee timely appealed.

A non-jury trial de novo was held in August of 1989 following which the trial judge decided in favor of Appellee. Appellants timely filed post-trial motions as well as supplemental post-trial motions. The trial court denied these motions. Appellants timely appealed. This Court vacated the judgments and remanded for further consideration of Appellants’ supplemental post-trial motions. See Kennedy v. Nationwide Insurance Co., 412 Pa.Super. 655, 594 A.2d 788 (Pa.Super.1991) (unpublished memorandum).

By the time the case was remanded, the judge who had presided over the trial had left the bench. For reasons that do not appear of record, the post-trial motions were not finally disposed of until 1997. Judgments were then duly entered in favor of Appellee. Appellants timely appealed and present the following issues for review: (1) whether the trial court erred in determining as a matter of law that thermography is not a reasonable and necessary medical treatment; and (2) whether the trial court erred in concluding that Appellee’s denial of Appellants’ claims was reasonable, thus entitling Appellants’ to attorneys’ fees pursuant to 75 Pa.C.S.A. § 1798(b).

The role of an appellate court in reviewing the trial court's final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed er *1053 ror in the application of law. Furthermore, the findings of the trial judge in a nonjury case must be given the same weight as a jury verdict and will not be disturbed on appeal absent error of law or abuse of discretion. When this [Cjourt reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and, conversely, all unfavorable inferences rejected.

Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa.Super. 545, 646 A.2d 1228, 1231 (Pa.Super.1994) (citations omitted). “Since the trial judge is in the best position to judge the credibility of the witnesses, an appellate court may not re-examine the weight to be given to their testimony. Similarly, an appellate court may not substitute its judgment for that of the trial judge.” Alberici v. Safeguard Mutual Insurance Co., 444 Pa.Super. 351, 664 A.2d 110, 113 (Pa.Super.1995) (citations omitted).

Conclusions of law, however, are not binding on an appellate court, whose duty it is to determine whether there was a proper application of law to fact by the lower court. 2401 Pennsylvania Avenue Corporation v. Federation of Jewish Agencies of Greater Philadelphia, 507 Pa. 166, 172, 489 A.2d 733, 736 (1985). With regard to such matters, our scope of review is plenary as it is with any review of questions of law. Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189 (1997). We shall evaluate the decision of the trial court as well as Appellants’ argument in accordance with these principles.

Appellants initially challenge the tidal court’s determination that thermography is not a reasonable and necessary medical expense. The Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1712(1) governs the provision of first party medical benefits and provides that:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title... shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:
(1) Medical benefit. — Subject to the limitations of section 1797 (relating to customary charges for treatment), coverage to provide for reasonable and necessary medical treatment and rehabilitative services, including but not limited to, hospital, dental, surgical, psychiatric, psychological, osteopathic, ambulance, chiropractic, licensed physical therapy, nursing services, vocational rehabilitation and occupational therapy, speech pathology and audiology, optometrie services, medications, medical supplies and prosthetic devices, all without limitation as to time, provided that, within 18 months from the date of the accident causing injury, it is ascertainable with reasonable medical probability that further expenses may be incurred as a result of the injury. Benefits under this paragraph may include any nonmedical remedial care and treatment rendered in accordance with a recognized religious method of healing.

75 Pa.C.S.A. § 1712(1).

The instant dispute turns on whether the thermography rendered to Appellants constitutes reasonable and necessary medical treatment so as to be compensable under section 1712(1). Our research has failed to uncover any precedential Pennsylvania appellate eases on this subject. 2 Consequently, *1054 both parties reference the law of other jurisdictions. Appellants rely upon caselaw that has found thermography to be compensable. Appellee, on the other hand, seeks to distinguish these authorities and further argues that thermography should not be compensa-ble because it does not meet the Frye 3 test governing the admissibility of scientific evidence. 4

With regard to the issue of whether ther-mograms constitute admissible scientific evidence under Frye,

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Bluebook (online)
720 A.2d 1051, 1998 Pa. Super. LEXIS 2821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tagliati-v-nationwide-insurance-pasuperct-1998.