Benton, R. v. Shull, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RONALD AND ALICIA BENTON, : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS HUSBAND : PENNSYLVANIA
AND WIFE :
:
Appellants :
:
:
v. :
: No. 1938 MDA 2019
:
POLLINA SHULL, LINA I. EYDLIN, :
ALEX EYDLIN AND VON M. :
SCHWANDT :
Appeal from the Order Entered November 6, 2019
In the Court of Common Pleas of Berks County
Civil Division at No(s): 18-2469
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 04, 2020
Alicia and Ronald Benton appeal from the order granting summary
judgment in favor of Pollina Shull and her parents, Linda and Alex Eydlin, in
the Court of Common Pleas of Berks County. On appeal, the Bentons contend
the trial court erred in granting summary judgment and dismissing their claims
under the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa. C.S.A.
§§ 1701 et. seq. We affirm in part and reverse in part.
This case arises from a three-car accident in which a vehicle driven by
Alicia Benton was struck from behind on Route 422 in Berks County. Shull,
who was driving a car owned by her parents, rear-ended a car driven by Von
Schwandt. Schwandt’s car, in turn, then struck Alicia Benton’s rear bumper.
Although the Benton car sustained only minor damage, Ronald, Alicia’s
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husband and the passenger in the front seat, claimed he suffered neck and
back injuries due to the accident.
The Bentons filed a tort action against Shull, Shull’s parents, and
Schwandt to recover damages for personal injury and loss of consortium. In
their complaint, the Bentons alleged that, as a result of Shull and Schwandt’s
negligence, Ronald sustained severe injuries to his neck and back. These
injuries, in turn, resulted in mental anguish, lost income, and medical
expenses. Accordingly, the Bentons sought economic as well as non-economic
damages.
Thereafter, Schwandt filed a motion for summary judgment alleging
Shull and her parents were solely liable to the Bentons. The trial court granted
the motion and dismissed Schwandt from the case.
Shull and her parents filed their Answer and New Matter, averring that
the Bentons were precluded from recovering damages for non-economic loss
because they had elected limited-tort coverage under the MVFRL. Shull and
her parents alleged that the MVFRL only allows a limited-tort plaintiff to
recover non-economic damages for “serious injuries,” and that Ronald was not
able to prove that his injuries were “serious” under the MVFRL.
At his deposition, Ronald testified that the injuries he suffered in the
accident have had a severe impact on his physical condition. In the years
following the accident, he underwent multiple surgical procedures to alleviate
pain in his neck and back. These procedures included a cervical discectomy in
his neck and lumbar decompression and fusion surgery on his back. He has
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also undergone physical therapy for his condition. However, despite receiving
various medical treatments, Ronald opined that his neck and back pain has
worsened in the years since the accident.
He also explained that his injuries have had an adverse effect on his
social life and marriage. Ronald is no longer able to drive – even though he
drove very little before the accident – and spends most of his time at home.
Moreover, he stated that he stopped having sex with his wife, Alicia, due to
the pain in his neck and back.
In addition, Ronald testified that his injuries prevented him from being
able to work at the janitorial services business he owns. Ronald maintained
that after the accident he was forced to hire employees to perform his
responsibilities. He claims he is no longer able to work as a result of the
accident.
The evidence adduced at the deposition also showed that Ronald had a
history of neck and back injuries predating the accident at issue. Ronald
admitted that he suffered neck and back injuries on several occasions prior to
the accident and that he experienced chronic neck and back pain for nearly
two decades. Throughout the years, Ronald has undergone various treatments
and surgical procedures on his neck and back in an attempt to alleviate his
pain. In fact, several hours before the accident, Ronald was seen at the
Rothman Institute and was given a prescription for oxycodone to treat the
pain in his neck and back.
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Following Ronald’s deposition, Shull and her parents filed a motion for
partial summary judgment on the Bentons’ claim for non-economic damages
under the MVFRL. In their motion, they argued that, since there was no expert
medical report showing that Ronald sustained a serious injury, the Bentons
were barred from recovering non-economic damages. The trial court held a
hearing and granted the motion. Accordingly, the Bentons were precluded
from presenting any testimony or evidence related to any non-economic
damages at trial.
Shortly thereafter, Shull and her parents filed a motion for summary
judgment on the Bentons’ remaining claim for economic damages. They
argued that the economic damages claim should be dismissed as it was
entirely dependent upon the claim for non-economic damages, which had
already been disposed of by the trial court. The trial court agreed, and entered
an order granting the summary judgment motion and dismissing the Bentons’
civil action with prejudice. This timely appeal followed.
On appeal, the Bentons raise the following issues for our review:
1. [Whether] the lower court erred in granting partial summary
judgment where the evidence introduced showed there was a
genuine issue of material fact as the medical evidence uniformly
stated the accident exacerbated [Ronald Benton’s] pre-existing
condition, there was a marked increase in pain as a result of the
accident . . . and there was medical evidence that opined that
[Ronald’s] current condition was caused by the motor vehicle
accident?
2. [Whether] the lower court err[ed] in granting summary
judgment and dismissing the complaint with prejudice when the
court incorrectly held the preclusion of the claim for non-economic
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damages did not preclude plaintiff from asserting a claim for
economic damages as pursuant to 75 Pa.C.S.A § 1705 (d), a
person who elects the limited tort alternative remains eligible to
seek compensation for economic loss?
Appellant’s Brief, at 5.
In their first issue, the Bentons argue the trial court erred in granting
partial summary judgment on their claim for non-economic damages. We
disagree.
We review a challenge to the entry of summary judgment as follows:
[We] may disturb the order of the trial court only where it is
established that the court committed an error of law or abused its
discretion. As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P. Rule 1035.2. The rule
states that where there is no genuine issue of material fact and
the moving party is entitled to relief as a matter of law, summary
judgment may be entered. Where the nonmoving party bears the
burden of proof on an issue, he may not merely rely on his
pleadings or answers in order to survive summary judgment.
Failure of a nonmoving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we review the record in the light most
favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
In re Risperdal Litigation, 175 A.3d 1023, 1028-1029 (Pa. Super.
2017).
In Pennsylvania, when purchasing automobile insurance, drivers are
presented with the option of choosing either full or limited-tort coverage under
the MVFRL. See 75 Pa. C.S.A. § 1705. A driver who has selected full-tort
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coverage under their insurance policy and who is injured by a negligent driver
can recover all medical and out-of-pocket expenses, and receive financial
compensation for pain and suffering and other non-economic damages. See
Verner-Mort v. Kapfhammer, 109 A.3d 244, 248 (Pa. Super. 2015) (citing
75 Pa. C.S.A. § 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.A. §
1705(a)(1)(A)). A “serious injury” is defined as “[a] personal injury resulting
in death, serious impairment of body function or permanent serious
disfigurement.” 75 Pa. C.S.A. § 1702.
Here, there is no dispute that the Bentons elected limited-tort coverage
under their policy and therefore must establish that Ronald suffered a “serious
injury” as defined by the MVFRL in order to recover non-economic damages.
There is also no dispute that, under the circumstances of this case, Ronald
was required to show he sustained an injury resulting in “serious impairment
of body function.” The Bentons, however, contest the trial court’s conclusion
that they failed to present evidence capable of establishing that Ronald
sustained such an injury. They assert that this question should have been
determined by a jury, not the court. See Appellant’s Brief, at 17.
Our Supreme Court in Washington v. Baxter, 719 A.2d 733, 740 (Pa.
1998), held that the threshold determination of whether a “serious injury” has
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been sustained was to be “left to a jury unless reasonable minds could not
differ on the issue of whether a serious injury had been sustained.” However,
the Court went on to find that the trial court in that case had properly granted
summary judgment on the basis that the plaintiff had failed to establish that
he had suffered a “serious injury.” See id.In reaching this conclusion, the Washington Court explained that the
inquiry is not whether the plaintiff has adduced sufficient evidence to show
that he has suffered any injury. Rather, the Court emphasized that the
question is whether the plaintiff has shown that he has suffered a serious
injury such that a body function has been seriously impaired. See id., at 741.
To help lower courts answer that question, the Court directed them to consider
the following factors: (1) the extent of the impairment, (2) the length of time
the impairment existed, (3) the treatment required to correct the impairment,
and (4) any other relevant factors. See id., at 740. Further, the Court stated
that medical testimony will generally be needed to establish the existence and
extent of an impairment. See id.
Therefore, Ronald was required to establish that the accident caused a
serious injury in order to get non-economic damages. In applying
Washington, this Court has found that a limited-tort elector seeking non-
economic damages did not establish that he had suffered a “serious injury”
when he did not provide any objective medical evidence regarding the degree
of an impairment and the extent of any pain suffered. See McGee v.
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Muldowney, 750 A.2d 912, 915 (Pa. Super. 2000). We held that subjective
allegations alone, in the absence of objective medical evidence, are not
sufficient to establish that a serious injury has occurred. See id.Here, Ronald presented evidence – most notably, the opinion of Dr.
Alexander Ricciuti, M.D. – that he suffered some injuries due to the accident.
Dr. Ricciuti opined that, as a direct result of the accident, Ronald suffered a
lumbar sprain, a cervical sprain, a myofascial spasm of the trapezius, and a
thoracic sprain. See Exhibit E, at 3. However, given his pre-existing injuries,
Ronald failed to establish that any of those injuries were serious.
As discussed above, Ronald suffered various injuries to his neck and
back in the years leading up to the instant car accident. He sustained a lumbar
disc herniation and other injuries to his neck and back in a series of car
accidents predating the one at issue. See N.T., Deposition, 09/26/2018, at
45-46 and 118-119. He also suffered neck and back injuries due to a work-
related accident and a medical mishap. See id., at 17-20. These episodes, in
particular, required Ronald to undergo a cervical spinal fusion on his neck and
a lumbar spinal fusion on his back. See id., at 21-22. Also, in that period,
Ronald was diagnosed with Guillain-Barre syndrome and experienced a degree
of weakness and paralysis in his back.1 See id., at 14-15.
____________________________________________
1“Guillain-Barre syndrome is rare disorder in which your body’s immune
system attacks your nerves.” Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/guillain-barre-
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As a result of these injuries, Ronald registered complaints of chronic
neck and back pain for well over a decade. His extensive medical history
reveals that his discomfort reached its apex on the day of the accident when
he presented for an examination at the Rothman Institute. There, Ronald
described to his treating physician, Dr. Saloni Sharma, M.D., that his neck and
back pain was an “8” on a scale of 10. See Exhibit A, at 1. He also reported
that he felt sharp and stabbing pain in his neck. See id. Dr. Sharma’s
examination noted “suspicious” changes in Ronald’s cervical myelomalcia, as
compared to previous years, and multiple levels of degenerative disc disease.
See id., at 1.2 The examination also showed a deterioration in Ronald’s
physical condition. This led Dr. Sharma to conclude that Ronald needed to
continue seeking treatment for his chronic neck and back pain. See id., at 1-
2.
Following the instant accident, we note that Ronald continued to
complain of neck and back pain, but not on the level he did before the
accident. He described his neck and back pain as between a “5” and “10” on
____________________________________________
syndrome/symptoms-causes/syc-20362793. The exact cause of Guillain-
Barre syndrome remains unknown. See id.
2 “Cervical myelopathy is a form of myelopathy that involves compression of
the spinal cord in the cervical spine (neck).” Johns Hopkins Medicine,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/cervical-
myelopathy. “Degenerative disk disease is when normal changes that take
place in the disks of your spine cause pain.” Johns Hopkins Medicine,
https://www.webmd.com/back-pain/degenerative-disk-disease-overview#1.
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the pain scale after the accident. See Exhibit C, at 2. This is a notable variation
as Ronald stated before the accident that his pain was unequivocally an “8”
on the pain scale. See Exhibit A, at 1. Further, the post-accident medical
evidence shows that Ronald’s cervical myelomalcia remains a noted concern
as does his degenerative disc disease. See Exhibit C, at 1; see also Exhibit
E, at 3-4. Hence, there is no objective evidence that would allow us to discern
any significant dissimilarity between Ronald’s physical condition prior to the
accident and in the immediate aftermath.
Accordingly, none of the post-accident medical evidence established
that Ronald suffered serious injuries to his neck and back. The medical
evidence merely showed that Ronald suffered some injuries as a result of the
accident. However, Ronald’s evidence was insufficient to establish that any of
the injuries he suffered from this accident were serious, given the serious
injuries he was suffering from before the accident. Therefore, under the
circumstances, we cannot conclude the trial court erred in finding the evidence
insufficient to establish that Ronald suffered a serious injury due to the
accident.
Next, the Bentons challenge the trial court’s decision to grant summary
judgment on their economic damages claim and dismiss their complaint with
prejudice. They argue that the court erred in preventing them from asserting
a claim for economic damages pursuant to 75 C.S.A. § 1705(d). See
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Appellant’s Brief, at 19. The Bentons contend that they retain the right to seek
economic damages as authorized by the limited-tort option. See id.
Under the limited-tort option, a policy holder and other household
members covered under the policy may seek to recover economic damages
for all medical and out-of-pocket expenses. See 75 Pa. C.S.A. §
1705(a)(1)(A). Notably, a claim for economic damages is an entirely separate
and distinct inquiry under the limited-tort option. See Long v. Mejia, 896
A.2d 596, 600 (Pa. Super. 2006). Therefore, even if the policy holder is
precluded from seeking non-economic damages, he or she is entitled to
present evidence of economic loss as a result of an accident. See 75 Pa. C.S.A.
§ 1705(a)(1)(A).
Here, the Bentons sought to present evidence of economic loss as a
result of the accident. Even though their claim for non-economic damages was
foreclosed by the trial court, the Bentons remained steadfast, as they do now,
that the limited-tort option entitled them to seek economic damages to
recover all medical and out-of-pocket expenses. But the trial court, having
found that the Bentons failed to overcome the limited-tort threshold on non-
economic damages, granted summary judgment on the issue of economic
damages. See Trial Court Opinion, 01/24/2020, at 12.
In reaching this conclusion, the trial court misread the MVFRL. Under
the statute, a claim for economic damages is entirely separate from a claim
for non-economic damages. See Long, 896 A.2d at 600. As such, a claim for
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economic loss under the limited-tort option is available regardless of whether
or not the claimant succeeds on his or her non-economic claim for pain and
suffering. See id.Moreover, the Bentons presented evidence capable of establishing that
Ronald suffered an injury due to the accident. Unlike a claim for non-economic
damages, the Bentons did not need to establish that Ronald sustained a
serious injury in the accident. Rather, they needed only to present medical
evidence that showed Ronald suffered some injury, which they did. For that
reason, the Bentons should have been permitted to present evidence of
economic loss to a jury, particularly with regard to unpaid medical bills and
any lost wages. It was for the jury to decide whether those losses were caused
by the accident or were the result of Ronald’s pre-existing injuries.
As a result, we conclude that the trial court erred in granting summary
judgment on the Bentons’ claim for economic damages under the limited-tort
option. The limited-tort option does not prevent claimants from seeking
recovery for economic damages merely because the claim for non-economic
damages fails. Thus, the Bentons are entitled to present evidence of economic
loss incurred as a result of the accident.
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Accordingly, we remand for further proceedings on the issue of
economic damages.
Judgment affirmed in part and reversed in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2020
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