Yannuzzi v. Reed

32 Pa. D. & C.4th 82, 1996 Pa. Dist. & Cnty. Dec. LEXIS 216
CourtPennsylvania Court of Common Pleas, Northampton County
DecidedJuly 9, 1996
Docketno. 1995-C-3377
StatusPublished

This text of 32 Pa. D. & C.4th 82 (Yannuzzi v. Reed) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northampton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yannuzzi v. Reed, 32 Pa. D. & C.4th 82, 1996 Pa. Dist. & Cnty. Dec. LEXIS 216 (Pa. Super. Ct. 1996).

Opinion

FREEDBERG, RJ,

This matter is before the court on the defendants’ motion for summary judgment. The issue presented is whether, under the “limited tort option” of Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., there is a material issue of fact as to the existence of a serious injury requiring determination by a jury.

In Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), the Superior Court en banc dealt exten[83]*83sively with the limited tort option provision. Writing for the majority, Judge Beck stated:

“The limited tort option authorizes the insurer to offer automobile insurance coverage at reduced premium rates to insureds who give up the right to sue for noneconomic damages, such as pain and suffering. A limited tort elector may sue for noneconomic damages only if he or she suffers ‘serious injury’ in an automobile accident. 75 Pa.C.S. § 1705(d).
“Serious injury is statutorily defined as death, serious impairment of body function or permanent serious disfigurement. 75 Pa.C.S. §1702.” Id. at 484, 665 A.2d at 1226.

The legislation was the culmination of attempts to curb the escalating cost of insurance premiums. Id. at 495 n.ll, 665 A.2d at 1231 n.ll.

In Dodson, the Superior Court held that the trial court should make a threshold determination of the existence of serious impairment of body function when there is no dispute of fact. The court stated:

“We emphasize that in deciding whether a material issue of fact exists for the jury, the judge should not focus on the injury but should focus on the nature and extent of plaintiff’s impairment as a consequence of the injury.” Id. at 494, 665 A.2d at 1231. Thus, it is only where there is “a substantial dispute of fact on the threshold issue, [that] the question is one for the jury.” Id. at 497, 665 A.2d at 1232.

A plaintiff, to cross over the “serious injury” threshold, must show a material dispute of fact by objective medical evidence. Thus, a plaintiff may not create a triable issue of fact with subjective evidence only. With [84]*84reference to soft tissue injuries, the court noted that, while it recognized that such injuries may be accompanied by subjective complaints of pain that are so severe that they result in a “serious impairment of body function,” the impairment must be objectively manifested.

The court adopted a definition of serious impairment •of body function offered by the Supreme Court of Michigan in DiFranco v. Pickard, 427 Michigan 32, 398 N.W.2d 896 (Mich. 1986). The definition is as follows:

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“(b) Was the impairment of body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment ... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” Dodson, supra at 499, 665 A.2d at 1233-34.

The Superior Court stated:

“An impairment involves more than the injury itself. The consequences of the injury must involve a serious impact for an extended period of time on a plaintiff’s [85]*85life____It must interfere substantially with the plaintiff’s normal activities and not impose only a mild or slight limitation.” Id. at 499, 665 A.2d at 1234. (citations omitted)

The word “serious” is equated with “significant” and “important” and involves an injury with consequences that are more than just minor, mild, or slight.

Consideration of the facts in Dodson is instructive. In that case, Dodson, who was the appellant, sustained certain injuries in a motor vehicle accident on January 11, 1992. He sought damages including noneconomic damages. When defendant Elvey raised the limited tort election as a defense to the claim for noneconomic damages, Dodson contended that he had sustained a “serious injury.” Plaintiff’s evidence showed that he immediately felt pain in his low back, the back of his head, his right arm and shoulder, and developed a frontal headache secondary to mid-forehead contusion immediately after the collision. He was taken to the emergency room, where x-rays were taken, and he was given a sling for his right arm. He could not use his arm throughout the month following the collision. He did not return to his job as a warehouseman for about four months and wore the sling the entire time that he was out of work. He was under the treatment of an orthopedist who initiated hydrotherapy and diagnosed rotator cuff damage and a fractured elbow. Dodson had six office visits with the orthopedist from January 16 to May 22, 1992, then attended a second physician who diagnosed cervical sprain, lumbar strain and iliopsoas strain. He visited this doctor eight times between January 24 and August 28, 1992. Initially, he had a decreased [86]*86range of motion secondary to muscle tightness and limited right elbow and right shoulder range of motion. He had pain or palpation in his low back. Heat and ultrasound were applied to his back, and he was ordered to do exercises for his shoulder. He received injections. He participated in physical therapy, taking nine treatments from April 9 until April 30, 1992. He was then released to work full-time without restriction on May 21, 1992, with a full range of motion. Upon his return to work, he had brief muscle soreness, but this quickly resolved. Subsequently, by July 1992, he complained of some elbow and forearm weakness. Examination showed some decreased strength, and he was instructed to continue with home exercises. By August 7 he demonstrated full range of motion with some stiffness at the extremes. There was a slight decrease in right upper extremity strength, but no neurovascular deficits. The doctor opined that he would “suffer long term with some mild to moderate right upper extremity weakness and more likely than not would develop arthritis in the future.” Id. at 489, 665 A.2d at 1228. It was also predicted that his soft tissue injury might be symptomatic periodically for the next two to three years. At his deposition, appellant stated that he continued to feel constant drumming pain primarily in his shoulder but sometimes in his elbow as well. He related that he did the same work as before the accident, but that it was harder to do with increased pain. He noted no treatment or prescription medication for the pain other than occasional self-treatment with Tylenol. He reported that he was unable to bowl, play softball, or lift weights as he did before the accident. The Superior Court con-[87]

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Related

DiFranco v. Pickard
398 N.W.2d 896 (Michigan Supreme Court, 1986)
Dodson v. Elvey
665 A.2d 1223 (Superior Court of Pennsylvania, 1995)

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Bluebook (online)
32 Pa. D. & C.4th 82, 1996 Pa. Dist. & Cnty. Dec. LEXIS 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yannuzzi-v-reed-pactcomplnortha-1996.