Berks County Common Pleas Decision Gives You Another Reason To Elect The Full Tort Option

On February 6, 2013, the Hon. Jeffrey K. Sprecher of the Berks County Court of Common Pleas filed an Opinion in support of an Order granting summary judgment to a defendant in a personal injury action. See Cadena v. Latch, No. 09-11475 (Ct. Com. Pl. Berks Co., Feb. 6, 2013). According to the Court's Opinion, the plaintiff was allegedly injured as a result of an October 2007 accident (the "Accident"). She complained of pain in her back, neck, shoulder, and left eye, and sought damages for, among other things, pain and suffering.

Plaintiff elected limited tort coverage under the automobile insurance policy and was therefore limited to economic damages (i.e., out-of-pocket expenses, loss of income, etc.) under Pennsylvania law, unless she could demonstrate that she suffered a "serious impairment of a body function."

Approximately one month after the accident, the plaintiff consulted with an orthopedic physician. MRI tests revealed mild degenerative changes at multiple levels in her spine, but the radiographs did not reveal a traumatic injury. The orthopedic physician diagnosed her with, among other things, cervical and lumbosacral strain/sprain, radiculitis, and headaches, and discharged her from treatment on July 10, 2008, after five appointments. The plaintiff sought no further treatment. In addition to the consultations, the plaintiff underwent ten physical therapy treatments between November 27, 2007, and March 18, 2008.

In June 2011, the plaintiff underwent an Independent Medical Examination ("IME") as part of her lawsuit. The IME report revealed pre-existing degenerative changes in the cervical and lumbar spine. The IME physician opined that there were no permanent injuries, and that the plaintiff had made a full recovery.

The defendant filed a motion for summary judgment, citing the findings from the IME report and the plaintiff's limited tort election. The Court granted the motion and entered judgment in favor of the defendant, finding that the plaintiff had sustained no "serious injuries," was seeking recovery only for non-economic damages, and had only selected the limited tort option on her automobile insurance policy.

The plaintiff appealed to Pennsylvania's intermediate appellate court, the Superior Court, arguing that the Court erred when it decided that she had not suffered a threshold injury (i.e., a serious impairment of a body function) as a matter of law, thereby precluding her from seeking non-economic damages under 75 Pa...