On October 29, 1998, the Supreme Court of Pennsylvania decided the case of Washington v. Baxter. In a majority opinion written by Justice Cappy, the Court held that "the ultimate determination should be made by the jury in all but the clearest of cases" in which the serious injury question is presented. This decision effectively removes from the trial judge the ability to determine in advance whether the injury in question is serious and make the determination a jury issue.
This presents a more difficult task for defense counsel in attempting to convince a court in a pre-trial motion for summary judgment that the facts of a given case fall within the exception to the Washington v. Baxter decision (i.e. it is one of those "clearest of cases," such that summary judgment should still be granted and the issue should be removed from the jury's consideration.)
Limited and Full Torts
Pennsylvania drivers have the statutory option of choosing between what is known as "limited tort" coverage, under which they limit their right to seek non-economic damages to those cases where they have suffered "serious injury" in exchange for a lower premium, or "full tort" coverage, for which a higher premium is charged but which does not contain the "serious injury" limitation. In 1995, the Superior Court (Pennsylvania's intermediate Appellate Court) decided the case of Dodson v. Elvey, in which it held that "determinations regarding the seriousness of a limited tort elector's injuries must be made by the trial court at the earliest possible stage." Essentially the Superior Court in Dodson removed the question of deciding what is serious injury from the jury and gave it to the trial judge who could reach that decision upon a motion. This was advantageous to the defense because, in most cases, trial judges held plaintiffs to a very high standard in proving that an injury in fact was, indeed, "serious."
The Pennsylvania Supreme Court's decision in Washington overrules Dodson and most likely results in the plaintiff getting her day in Court.
Serious Injuries
However, it should be noted that the Supreme Court upheld the granting of summary judgment in the Washington v. Baxter case. In an odd twist, although the court held that the determination of whether an injury is a "serious injury" under the statute is for the jury, except in rare instances, the Washington case was one of those rare instances where a judge was proper in the withholding of that issue from the jury and granting summary judgment.This point is important in that the opinion sets forth the requirements for establishing a serious injury. "The question to be answered is not whether Appellant has adduced sufficient evidence to show Appellant suffered any injury; rather, the question is whether the Appellant has shown that he has suffered a serious injury such that a body function has been seriously impaired."
While plaintiffs will rely on Washington for the proposition that the determination of whether an injury is considered "serious" under the legislative scheme is for the jury, defendants can point to the ultimate outcome in Washington for the proposition that there are some instances where plaintiff cannot meet his burden to show a "serious injury." Therefore the pretrial record will be critical to both sides on this issue.