Pennsylvania Superior Court Further Limits the Limited Tort Defense

After criticizing the reasoning behind a decision it rendered in 1997, the Pennsylvania Superior Court opted to follow that flawed logic when deciding the recent limited-tort case of Varner-Mort v. Kapfhammer, 109 A.3d 244 (Pa.Super. 2015). In that case, Donna Varner-Mort was involved in an automobile accident with Bridgett Kapfhammer on May 6, 2009. Ms. Varner-Mort and her husband, Daniel Mort, filed a complaint against Kapfhammer on June 27, 2011, raising claims of negligence and loss of consortium, respectively. After discovery concluded, the trial court granted Kapfhammer’s motion for summary judgment, finding that Ms. Varner-Mort’s complaint was filed beyond the two-year statute of limitations. On appeal, the Superior Court reversed.

It was undisputed that Ms. Varner-Mort and her husband chose the limited tort option when they purchased automobile insurance. As a limited tort plaintiff, Ms. Varner-Mort could recover non-economic damages only if she proved that she suffered a serious injury. Pennsylvania’s Motor Vehicle Financial Responsibility Law defines “serious injury” as “a personal injury resulting in death, serious impairment of body function, or permanent serious disfigurement.”

When it decided Kapfhammer’s motion for summary judgment, the trial court had the benefit of Ms. Varner-Mort’s medical records. The court found that Ms. Varner-Mort realized she was injured on the day of the accident when she experienced pain and swelling. She first sought medical attention at the emergency room on May 8, 2009—two days after the accident. The next day, May 9, 2009, Ms. Varner-Mort returned to the emergency room complaining of pain and numbness that radiated down her legs and into her toes. She was diagnosed with a back sprain with paresthesia of a lower extremity. Ms. Varner-Mort continued to treat for her low back pain over the years, but the injury remained the same from the time of the accident through 2011. The trial court reasoned that, because Ms. Varner-Mort’s symptoms failed to improve with treatment prescribed by her doctors, she “was reasonably put on notice that she suffered a serious injury as a result of the motor vehicle accident.” Accordingly, the trial court concluded that Ms. Varner-Mort’s claims were filed after the expiration of the two-year statute of limitations on May 6, 2011.

In response to summary judgment, and during the subsequent appeal, Ms. Varner-Mort’s attorneys relied on the Superior Court’s opinion in Walls v. Scheckler, 700 A.2d 532 (Pa.Super. 1997). Based on Walls, they argued that the statute of limitations did not begin to run until Ms. Varner-Mort became aware that she suffered a serious injury.

In Walls, the plaintiff was involved in an automobile accident on September 27, 1991, but did not commence an action against the defendant until September 30, 1993, three days after the two-year anniversary of the accident. The Superior Court held that, “[u]ntil a plaintiff is aware or reasonably should be aware that he or she has suffered a ‘serious injury,’ such as would allow limited tort recovery, the statute of limitations does not begin to run. Applying this analysis, [the plaintiffs’] action for personal injuries may have been timely filed, depending on whether the fact-finder credits [the plaintiff’s] testimony as to when her injury was diagnosed as serious.” In Walls, the court found that there was a genuine issue of material fact as to when the plaintiff became aware that she had suffered a serious injury and, therefore, summary judgment was not proper.

In Varner-Mort , the Pennsylvania Superior Court recognized that they were bound by the Walls decision but also stated that “the holding therein is just plain wrong.” The court acknowledged that the general rule in Pennsylvania regarding car accident cases is that the statute of limitations begins to run for an injured plaintiff on the date of the accident. The Superior Court further acknowledged that the Pennsylvania Supreme Court has held that the statute of limitations for a cause of action begins to run as soon as the right to institute and maintain a suit arises, which, in most cases, occurs on the date the injury is sustained.

The court noted that there is only one material difference between a full-tort and a limited-tort plaintiff. When a full-tort plaintiff is injured, he can recover all medical and out-of-pocket expenses, as well as financial compensation for pain and suffering and other non-economic damages. A limited-tort plaintiff can also recover all medical and out-of-pocket expenses but cannot recover for pain and suffering or other non-economic damages unless he or she sustains a serious injury.

The Varner-Mort court criticized its prior holding in Walls, stating:

We fail to see why a limited-tort plaintiff’s inability to seek non-economic damages unless the plaintiff suffers a ‘serious injury’ should alter when a negligence cause of action begins to accrue for purposes of the statute of limitations. Such a limitation on the plaintiff’s eligibility to recover a specific type of damage does not alter when the right to institute and maintain a suit arises, because the plaintiff can seek to recover economic damages and, if she is able to prove that she suffered a ‘serious injury,’ the plaintiff can seek to recover the same damages as a full-tort plaintiff.

Applying the law (and the criticisms of its previous decision) to the facts of the Varner-Mort case, the Superior Court found that Ms. Varner-Mort knew that she was injured on the date of the accident and realized that she had suffered a back injury within a few days of the accident. Although medical records revealed that Ms. Varner-Mort underwent an MRI on August 13, 2009, which revealed severe conditions of her lumbar spine, and treated with her orthopedic surgeon as early as October 6, 2009, the court relied heavily on an affidavit of Ms. Varner-Mort’s orthopedic surgeon in which he stated that, as of June 8, 2010, he realized, to a reasonable degree of medical certainty, that Ms. Varner-Mort sustained a “serious impairment of a significant bodily function.” Finding it was up to the fact-finder (the jury) to accept or reject the contention that Ms. Varner-Mort did not realize she had a serious injury until June 8, 2010, thus commencing the two-year statute of limitations, the Superior Court reversed the trial court’s order granting summary judgment and remanded the case to the trial court for further proceedings.

Pursuant to Varner-Mort, even when the triggering event (car accident) for a cause of action and the running of the statute of limitations appear to be crystal clear, the Wall decision mentioned in Varner-Mort may “muddy the waters.” Given the statement by the court acknowledging that the Wall decision is “plain wrong,” hopefully, any confusion will be short-lived. However, in the meantime, all arguments related to the running of the statute of limitations should be preserved.

 *Pat is a shareholder in our Erie, Pennsylvania office. He can be reached at 814.480.7803 or pmcarey@mdwcg.com.

_{Defense Digest, Vol. 21, No. 2, June 2015}

_{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. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}