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
“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
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’sPage 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
In the instant case, plaintiff was injured in an auto collision on May 14, 1993. On that day he was insured by the Ohio Casualty Insurance Company and had selected the limited tort option under the policy. He testified at deposition that he was 73 years old at the time of the collision and was employed as a janitor. He struck his head on the windshield of the car and spent three days in the hospital. He claims that he experienced dizzy spells because he hit his head on the windshield of his vehicle. After being released from the hospital, he was treated by his family physician, Dr. B. K. Mehta.
On May 25, 1993, Dr. Mehta diagnosed plaintiff as having acute low back pain, post-traumatic headache, right rib sprain, and right knee sprain. On June 24, 1993, Mehta indicated acute lumbar sprain. On July 16, 1993, an MRI finding indicated a “suggestion of a small left paramedian/lateral disc herniation at the Ll-2 level.” The July 23, 1993 records of Dr. Mehta indicate a herniated nucleus pulposis at Ll-2. On July 27,1993, Dr. Mehta’s impression was of lumbar sprain. On August 3, 1993, Mehta indicated a herniated disc at Ll-2 and ordered no lifting. On October 7, 1993, Mehta continued to diagnose him with lumbar sprain. On October 21, 1993, Mehta noted that the sprain had
Plaintiff did not return to work after the accident, but testified that he was ready to retire at that time, anyhow. Plaintiff reported that he takes one cyclobenzaprine pill at night and that it eases his pain so that he can sleep. He underwent physical therapy from the summer of 1993 to November 1993, and for a part of 1995.
With regard to his back, he testified that some days it is alright but said that if he helps around the house, he experiences pain which eventually goes away. The only other problem that he experiences is occasional ringing or pounding in his ear, which comes with bad weather. There are some days when he has no pain in his back. He wears a back brace when he goes out. When asked if there are any things that he was able to do before the accident that he could not do now, he was non-responsive. He reported occasional headaches and said that he did not have headaches before the accident. He does a lot of walking which helps him. He testified that the woman with whom he now resides helps him do things that he is not physically able to do. However, he did not provide any details. He had previously lived with a daughter but left because he had a misunderstanding with her, and at that time he moved in with the woman with whom he currently resides.
There are no material issues of fact, and the case is, therefore, appropriate for entrance of a summary judgment by the court. The facts recited above are drawn entirely from the testimony of the plaintiff and the report
In concluding that defendant’s motion for summary judgment with reference to plaintiff’s noneconomic losses should be granted, we note the following from Adelman v. Conigliaro, 68 Bucks 140 (1996):
“A suggested purpose behind the implementation of the limited tort option is the reduction of pain andPage 90suffering litigation. Plaintiff consciously chose to accept the benefits of a reduced premium in exchange for his right to collect noneconomic damages for minor injuries. If the courts decline to make a distinction between serious and nonserious injuries resulting from automobile accidents, the goals and objectives of the legislature in drafting such legislation will be frustrated.”
Because there is no material issue of fact and because the evidence from plaintiff is insufficient to establish a serious injury, summary judgment in favor of the defendant is required.
Wherefore, we enter the following order:
ORDER
And now, July 9, 1996, the motion for summary judgment by defendants is granted as to plaintiff’s claims for noneconomic loss.