Monday, October 29, 2012

Separate Rulings For Separate Injuries in Single Lawrence County Limited Tort Case

Summary Judgment in favor of a Defendant was recently denied in part and granted in part in the Lawrence County Limited Tort case of Dengler v. Marsh, PICS Case No. 12-1964 (C.P. Lawrence Co. Oct. 3, 2012 Motto, P.J.).

The Plaintiff in this matter was involved in a motor vehicle accident during which her vehicle was allegedly hit from the rear and caused to strike a vehicle ahead. During the course of the accident, the Plaintiff allegedly hit her forehead on the rear view mirror and was bleeding from a 3 cm abrasion. The Plaintiff was able to exit the vehicle under her own power.

About four hours after the accident, the Plaintiff reported to the emergency room where she complained of the abrasion to her forehead and neck and shoulder pain. An x-ray was negative for any cervical fracture. The Plaintiff was treated and released.

Thereafter, the Plaintiff began to experience neck and back pain. A CT scan of the Plaintiff’s back noted an old healed fracture at the level of L5 in her low back.

However, at a family doctor visit about six (6) weeks after the accident, the Plaintiff did not indicate that she was suffering any neck or back pain. At that visit, the Plaintiff’s primary physician noted that the Plaintiff appeared to be healthy and with no signs of any acute distress.

The Plaintiff, who was covered by the Limited Tort option at the time of the accident, eventually brought suit alleging serious injuries to her forehead, neck, and back. The Defendant eventually moved for summary judgment on the Limited Tort defense.

In response to the Defendant’s Motion, the Plaintiff produced an expert report from a chiropractor. The Plaintiff also offered up her own testimony that, when she performed household chores, her pain level increased. She also complained that, whenever she stood or walked for any length of time, she would be required to sit down due to her pain.

The Plaintiff’s chiropractor offered an opinion that the Plaintiff had a loss of body impairment to the extent that the Plaintiff was not able to perform all of her daily activities, such as cleaning or walking any distance, without suffering from increasing pain in her low back.

Based upon the record before the Court, President Judge Motto concluded that reasonable minds could differ on the question of whether or not the Plaintiff sustained a “serous injury” as that term is defined under the MVFRL. As such, the Court denied Defendant’s Motion for Summary Judgment with regard to the Plaintiff’s complaints of neck and back pain.

However, the Court separately considered the Plaintiff’s claim of a disfigurement and found that the Plaintiff had failed to demonstrate that she suffered a permanent serious disfigurement as a result of the 3 cm abrasion to her forehead so as to breach the Limited Tort threshold with respect to that particular injury. While the court acknowledge the presence of a scar in the form of a barely visible pale line on the Plaintiff's forehead, the scar was barely visible and could be covered by the Plaintiff wearing her hair down over her forehead.

Accordingly, after citing the case of Walsh v. Phillips, 38 Pa.D.&C.4th 178 (1997) as support, Judge Motto granted the Defendant’s Motion for Summary Judgment with respect to the disfigurement claim.

Anyone desiring a copy of this Opinion may click this LINK.

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