Is Everything But the ‘Kitchen’ Sink Required to Meet Limited Tort Threshold?
Defense Digest, Vol. 24, No. 1, March 2018
By David P. Czap, Esq.*
In Pennsylvania, automobile insurance law is governed by the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701-1799.7. But what does “Financial Responsibility” mean? In Pennsylvania, every driver must purchase liability coverage in the amount of $15,000 per person, $30,000 per accident and $5,000 in property damage to cover claims of others in an accident. Penalties for operating a vehicle without insurance coverage include a license suspension for three months, impounding of the vehicle and registration suspension for three months. However, the suspension can be waived if you elect to pay a $500 civil penalty.
When purchasing auto insurance, a driver has the option of choosing between “full tort” and “limited tort.” If you elect “full tort,” you will pay a higher premium, but you will be able to bring a claim for any injury suffered as the result of an accident. More importantly, this “full tort” status will enable you to seek recovery for non-economic damages (pain and suffering). Under the “limited tort” option, your premiums will be less, but you will not be able to seek non-economic damages in a lawsuit unless the injuries suffered fall within the definition of “serious injury.” Obviously, the battle for what constitutes a “serious injury” rages on in Pennsylvania.
A “serious injury” is defined in § 1702 as: “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” Whether an injury is sufficiently serious to overcome the limited tort threshold is a determination that shall not be made routinely by a trial court judge unless reasonable minds could not differ on the issue of whether a serious injury has been sustained. Washington v. Baxter, 719 A.2d 733, 740-741 (Pa. 1998).
The focus of inquiry of whether a plaintiff sustained a “serious injury” is not on the injuries themselves; rather, the inquiry must be the effect of the injury on a body function. Several factors are considered in determining if the claimed injury is a “serious injury,” such as:
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.
An impairment need not be permanent to be considered “serious.” The consequences of an injury must involve serious impact for an extended period of time on the plaintiff’s life and must interfere substantially with the plaintiff’s normal activities, rather than impose only mild or slight limitations, in order to meet the threshold of serious injury. Murray v. McCann, 658 A.2d 404, 407 (Pa.Super. 1995).
Practically speaking, it typically comes down to whether defense counsel should file a motion for summary judgment on the “serious injury” issue. In the case of Sandra Kitchen and Samuel Kitchen, w/h and Christian Kitchen, a Minor by his parents and guardians, Samuel Kitchen and Sandra Kitchen v. Jerome Kruman, Superior Court of Pennsylvania, 2017 Pa.Super. Unpub. LEXIS 4079 (Pa.Super. Nov. 3, 2017), the issue of what constitutes a “serious injury” was recently addressed. On June 23, 2008, Christian Kitchen (12 years old at the time), was a front seat passenger in a vehicle driven by his mother. Jerome Kruman was operating his vehicle in the opposite direction when he made a left turn in front of the Kitchen vehicle, causing a collision. (Mr. and Mrs. Kitchen also filed claims against Mr. Kruman; however, those claims were resolved, so the only remaining claim was Christian’s negligence claim against Mr. Kruman.)
Following the accident, Christian Kitchen was taken to the Emergency Room, where X-Rays were taken. As he suffered no fractures, he was discharged and directed to undergo physical therapy for two months for a right knee injury, which was described as a “bone bruise.” Dr. Grady examined him and believed that there might be an injury to his right posterior cruciate ligament, even though the ligament was still intact. Dr. Grady knew Christian was an active boy who played sports, so he instructed him to wear a knee brace. In July 2009, about six months after he finished physical therapy, Christian complained that his right knee pain returned once he began “vigorous activities.” Dr. Grady diagnosed him with “mild patellofemoral pain syndrome.” Approximately one year later, Christian returned to Dr. Grady, complaining that his right knee was “popping,” caused by running.
On April 15, 2011, almost three years after the accident, Christian was deposed and testified that he was quite active and played a variety of sports, but he almost always had to stop to take breaks while playing sports due to right knee pain. He had outgrown his right knee brace. Christian appeared for another deposition on March 30, 2016, almost eight years after the accident). He was 20 years old and in the Navy Reserve. Prior to Navy “boot camp,” he underwent medical examinations and fitness tests required by the Navy. Christian successfully met the fitness requirements, including running one-and-one-half miles in under twelve-and-one-half minutes, and he was able to complete two months of Navy boot camp. Christian worked at a Wawa about 30-40 hours a week and was required to lift boxes and remain on his feet.
Christian had not received any medical treatment for his right knee since 2011. He had not undergone an MRI, X-ray, surgery or injections in his knee. At his second deposition, he testified that, although his right knee was not bothering him at the moment, he was “limited” because of it. He stated that he had pain when “running and stopping and making hard cuts and turns,” was unable to lift “certain heavy things” or drive for very long.
On September 7, 2016, an independent medical exam (IME) of Christian was conducted by Dr. Elia. Dr. Elia’s report stated that Christian had no pain, no tenderness and full range of motion in his right knee. Further, the report noted that any complaints of right knee pain were unrelated to the injury suffered in the accident eight years prior. Dr. Elia determined that any residual pain could be attributed to Christian’s “excessive activity level.” As such, the injury had resolved.
On October 25, 2016, Mr. Kruman filed a motion for summary judgment, asserting that as a passenger in his mother’s vehicle, Christian was bound by his mother’s limited tort option. Therefore, the only issue for the court to consider was whether Christian sustained a sufficiently “serious injury” to maintain an action for non-economic loss. The court granted Mr. Kruman’s motion on March 6, 2017. On March 30, 2017, Christian Kitchen filed a notice of appeal in which he raised two issues. First, did the lower court abuse its discretion in granting summary judgment by arbitrarily concluding that his chronic injuries did not create serious impairments of bodily function sufficient to overcome the limited tort restrictions? Second, was he entitled to have a jury decide if his chronic injuries created serious impairments of body function?
Christian relied primarily on the cases Cadena v. Latch, 78 A.3d 636 (Pa.Super. 2013) and Kelly v. Ziolko, 734 A.2d 893 (Pa.Super. 1999) to support his position that the trial court erred in granting summary judgment. In Cadena, after a motor vehicle accident, the plaintiff refused emergency care, missed only one week of work, never re-filled initial pain medication; went on vacations; testified that her pain had decreased; gained some weight; was uncomfortable standing; missed some of her children’s school functions; was not as sexually active; and did not drive as much. She also stopped all medical treatment after nine months. Her physician determined that she suffered the following ailments: cervical radiculitis, lumbar radiculitis, bilateral C5 radiculopathy, left-sided C6 radiculopathy, L4-L5 radiculopathy, cervical sprain and strain, lumbosacral sprain and strain, lumbar disc bulging, DJD, and multiple level HNP. The Cadena court ruled that the trial court erred by granting summary judgment and opined:
Looking at the record in the light most favorable to Appellant, she has shown that she was diagnosed with no less than eight ailments, which her treating physician stated to a reasonable degree of medical certainty were a direct result of the accident……Furthermore, Appellant has described at length how her daily life has changed because of the pain she has and continues to endure……..We also respectfully disagree with the trial court that summary judgment was warranted because Appellant was declared to have recovered from all injuries…..As noted above, an impairment need not be permanent to be serious.
In Kelly, because of a motor vehicle accident, the plaintiff suffered injuries to his neck, back and lower back, and suffered numbness in his face and toes. As the result of his injuries, he underwent physical therapy. An MRI indicated he suffered from a herniated disc. He sought chiropractic treatment and described his lower back pain as a “dull, achy pain.” He had trouble sleeping, could not run, was unable to walk or sit for more than 15 minutes, and found it difficult to play with his child. He could no longer ride his mountain bike or motorcycle and could not hunt. He returned to work three days after the accident and remained gainfully employed. The Superior Court of Pennsylvania held that, while this case was “less clear cut” than other cases, the trial court erred in granting summary judgment and should have sent the issue of serious bodily injury to the jury.
In the Kitchen case, the trial court justified its decision to grant summary judgment as follows:
- Reasonable minds could not differ that Christian Kitchen’s knee injury was not serious such that bodily function has been seriously impaired;
- Any impairment was di minimis;
- Christian’s ultimate diagnosis was a bone bruise and mild patellofemoral pain syndrome;
- Treatment was not extensive;
- He underwent two months of physical therapy and was instructed to wear a knee brace;
- He sought no treatment in the last six years;
- His injury has had little or no impact on normal daily activities;
- Christian maintains an active lifestyle and participates in numerous sports;
- Several years after injury, he joined the Navy and passed its medical and physical testing;
- He survived Navy boot camp;
- He maintains a job requiring him to stand for eight hours;
- The IME report states that any complaints about right knee are unrelated to accident; and
- Kitchen is unable to overcome the limited tort threshold.
In the Superior Court of Pennsylvania’s opinion, affirming the trail court, it offered several additional observations. Christian had totally failed to controvert Dr. Elia’s assessment in his 2016 IME that he remained extremely active following the accident and that the residual pain was attributable to his “excessive activity level.” Unlike in Cadena, and other decisions, any pain that Christian continued to experience was the product of his own lifestyle, not the result of the motor vehicle accident. The day-to-day lives of the plaintiffs in Cadena and Kelly were seriously impaired; however, Christian suffered minimal impact in comparison, far from enough to classify his injury as a serious impairment of bodily function. For those reasons, the Superior Court agreed that the limited tort threshold had not been met.
As defense counsel, we routinely deal with plaintiffs attempting to build their cases by throwing “everything but the kitchen sink” at us with regard to injuries, damages, treatment and how injuries have impacted their lives. This is especially true in “limited tort” cases, where the plaintiff must establish a “serious injury.” Clearly, decisions like those in Kitchen, although not precedential, can help inform defense arguments that attempt to combine this “Kitchen sink” approach.
*Dave is a shareholder in our Philadelphia, Pennsylvania office. He can be reached at 215.575.2754 or email@example.com.
Defense Digest, Vol. 24, No. 1, March 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact firstname.lastname@example.org.