Opinion
J-S51018-18 No. 1178 EDA 2018
09-24-2018
BORIS LYSYKANYCZ AND MICHELLE LYSYKANYCZ, HW Appellants v. WADE D. REIDENHOUR
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order March 28, 2018
In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2016-C-2527 BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY NICHOLS, J.:
Appellants, Boris Lysykanycz (Husband) and Michelle Lysykanycz (Wife), appeal from the order granting Appellee Wade D. Reidenhour's motion for summary judgment and dismissing all claims against Appellee. Appellants argue that the trial court erred in granting summary judgment in favor of Appellee because they presented sufficient evidence to meet the limited tort threshold. We affirm.
The trial court set forth the relevant facts and procedural background of this case as follows:
According to the Complaint, [Husband] was operating a 2007 Cadillac Escalade at or about 9:09 p.m. on April 26, 2015. [Wife] was in the front passenger seat. [Appellants] were traveling westbound through the intersection of South Cedar Crest Boulevard and Lincoln Avenue in Salisbury Township, Lehigh County, Pennsylvania. [Appellants] allege [Appellee] was operating a 1995 Volkswagen Passat traveling southbound on
Cedar Crest Boulevard toward the same intersection. They claim [Appellee] ran a red light and negligently crashed into the passenger side of [Appellants'] vehicle, causing both to sustain injuries.
[Appellants] allege that [Husband] "sustained bodily injuries to his neck, C[-]4 - C-6 disc herniations, right arm, [and] right shoulder." Complaint at ¶ 9. They further allege that [Wife] "sustained bodily injuries to her knee, lower back, fear of driving, anxiety and panic disorder." Id. at ¶ 16. Additionally, both [appellants] allegedly suffered "physical and mental pain, anguish, anxiety and distress." Id. at ¶¶ 11, 18. [Appellants] have also each advanced a count for loss of consortium.
In [Appellee]'s Answer and New Matter, [Appellee] generally denied all of [Appellants'] factual averments. [Appellee] also asserted that "[Appellants] have elected the limited tort alternative, and [Appellants'] alleged injuries are not serious as defined by the [Motor Vehicle Financial Responsibility Law], [so Appellants] are precluded from recovering damages for noneconomic loss by the applicable provisions of that law." [Appellee's] Answer and New Matter, at 41.
Appellants filed their Complaint on September 27, 2016 alleging various injuries. On October 25, 2016, Appellee filed an Answer to the Complaint with New Matter. As noted above, in Appellee's New Matter, he argued Appellants' injuries do not pierce the limited tort threshold. On June 23, 2017, Appellee filed a Motion for Partial Summary Judgment on Limited Tort[,] which requested the Court to preclude Appellants from presenting any testimony or evidence for non-economic damages at trial.
On September 21, 2017, the Court heard oral argument on the summary judgment motion and took the matter under advisement. On September 26, 2017, the Court entered an Order with an accompanying Memorandum Opinion granting the partial summary judgment motion.
By agreement of the parties, the matter was to be submitted to arbitration. However, on March 14, 2018, Appellee filed a second Motion for Summary Judgment. Appellee asserted that because Appellants had not claimed any economic damages, and because the Court's order granting the prior Motion for Partial Summary Judgment resulted in a preclusion of the recovery of any non-economic damages, there were not any damages remaining in the case for Appellants to request of the arbitration panel. Appellants
filed an Answer to Appellee's motion on March 27, 2018, which did not oppose the motion and requested that it be granted so as to render the September 26, 2017 Order "final" for appellate purposes. The Court granted the March 14, 2018 motion as unopposed on March 28, 2018.Trial Ct. Op., 4/17/18, at 1-3 (some formatting altered).
On April 10, 2018, Appellants filed the instant Notice of Appeal. In the within appeal, Appellants challenge the Court's decision with respect to the partial summary judgment motion, not the subsequent summary judgment motion which resulted in dismissal of the case as a whole. Appellants filed a Concise Statement on April 13, 2018.
Appellants raise the following issues on appeal:
1. Whether or not the trial court erred by granting partial summary judgment on the limited tort defense because our Supreme Court explicitly ruled that the limited tort defense is for the jury and not the trial court[.]Appellants' Brief at 4 (full capitalization omitted).
2. Whether or not both [Appellants] meet the limited tort threshold given the facts of the injury and the impact it has on both lives[.]
Appellants contend that the trial court erred in granting partial summary judgment, as the question of whether Appellants suffered a "serious injury" is exclusively reserved for the jury. Appellants argue that the Supreme Court's decision in Washington v. Baxter , 719 A.2d 733 (Pa. 1998), supports their claim for relief. Id. at 20. Further, Appellants argue that they presented sufficient evidence to show that they both suffered a "serious injury" and met the limited-tort threshold. Id. at 23.
The standards governing our review of a trial court's grant of summary judgment are well settled.
Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion. Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment.Hovis v. Sunoco , Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013).
In Pennsylvania, when selecting automobile insurance, drivers have the option of choosing full or limited-tort coverage. 75 Pa.C.S. § 1705. An individual who has purchased full-tort coverage and who is injured by a negligent driver can recover all medical and out-of-pocket expenses, as well as financial compensation for pain and suffering and other non-economic damages. Varner-Mort v. Kapfhammer , 109 A.3d 244, 248 (Pa. Super. 2015) (citing 75 Pa.C.S. § 1705(a)(1)(B)). "A limited-tort plaintiff also can recover all medical and out-of-pocket expenses; however, such a plaintiff cannot recover for pain and suffering or other non-economic damages unless the plaintiff's injuries fall within the definition of 'serious injury.'" Id. (citing 75 Pa.C.S. § 1705(a)(1)(A)). The term "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.
In Washington , the plaintiff selected the limited-tort option and, following a motor vehicle accident, he claimed that he sustained a serious injury that would allow him to recover non-economic damages pursuant to 75 Pa.C.S. § 1702. Washington , 719 A.2d 733, at 638. The defendant filed a motion for summary judgment, arguing that the plaintiff failed to establish that he had suffered a serious injury, and the trial court granted the defendant's motion. Id. at 638.
On appeal, the Supreme Court noted that "the threshold determination was not to be made routinely by a trial court judge . . . but rather was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained." Id. at 740. However, since it was clear that the plaintiff had failed to establish that he suffered a "serious" injury, the Supreme Court affirmed the trial court's decision. See id.
The Washington Court explained:
Plaintiff, however, is of the opinion that he has adduced sufficient evidence of a serious impairment of body function so that the issue should go to a jury. In arguing this, [the plaintiff] focuses primarily on [his doctor's] pronouncement that there was some type of arthritis or coalition in [his] right foot; apparently, [he] assumes that this evidence alone is sufficient to bring the matter to a jury. [Plaintiff] seems to have misapprehended the nature of the inquiry here. The question to be answered is not whether [Plaintiff] has adduced sufficient evidence to show that Appellant suffered any injury; rather, the question is whether [he] has shown that he has suffered a serious injury such that a body function has been seriously impaired. Clearly, it is insufficient for [Plaintiff] to show that there has been some injury—no matter how minor—in order to avoid the entry of summary judgment against him. Were we to fail to require [a plaintiff] to adduce evidence that not only was
there an injury, but that it was also serious, before allowing him to present his case to the jury, we would make a mockery out of the summary judgment standard. Although [Plaintiff] has introduced evidence that there is some type of arthritis or coalition in his foot, he has failed to show that this injury has had such an impact on him so that it constitutes a serious injury. Therefore, we reject [Plaintiff's] argument.Id. at 741. Additionally, we note that
[o]ur Supreme Court has held that in determining whether a motorist has suffered a serious injury, "the threshold determination was not to be made routinely by a trial court judge . . . but rather was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained." Washington v. Baxter , 553 Pa. 434, 719 A.2d 733, 740 (1998). In conducting this inquiry, "several factors must be considered to determine if the claimed injury is 'serious': '[1.] the extent of the impairment, [2.] the length of time the impairment lasted, [3.] the treatment required to correct the impairment, and [4.] any other relevant factors.'" Graham v. Campo , 990 A.2d 9, 16 (Pa. Super. 2010), appeal denied, 609 Pa. 703, 16 A.3d 504 (2011). Our Supreme Court has cautioned that "the focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function." Washington , supra. We remain cognizant of the principle that "[a]n impairment need not be permanent to be serious" under section 1705(d). Robinson v. Upole , 750 A.2d 339, 342 (Pa. Super. 2000) (citation omitted).Cadena v. Latch , 78 A.3d 636, 640 (Pa. Super. 2013) (emphasis added).
Following our review of the certified record, the parties' briefs, and relevant legal authority, we conclude that the trial court's Pa.R.A.P. 1925(a) opinion comprehensively and correctly disposes of Appellants' claims of error. See Trial Ct. Op., 4/17/18, at 1-6 (reciting the facts of record, applying the four factors noted in Cadena above, and concluding that reasonable minds could not differ on the conclusion that Appellants did not suffer a serious injury, given the lack of objective medical evidence stating so.)
We agree with the trial court's conclusion that Appellants, having selected the limited-tort option, failed to establish that they suffered "serious injury" as that term is defined, such that Appellee's motion for partial summary judgment should have been denied. See Cadena , 78 A.3d at 640.
We further agree with the trial court that Appellants did not identify objective medical evidence nor any opinion that their injuries were serious or resulted in serious impairment of a body function. Therefore, reasonable minds could not "differ on the issue of whether a serious injury had been sustained." Washington , 719 A.2d at 740. Accordingly, we discern no error or abuse of discretion in the trial court's conclusion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/24/18
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