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Three (3) Cases to Bolster Your Limited Tort Summary Judgment Response

Any of us plaintiff’s lawyers that take limited tort cases through litigation can expect one thing for sure: Summary Judgment Motions. The insurance companies continue to push the erroneous notion that to “pierce” the limited tort threshold is a legal question, not a factual one. Fortunately, the focal point of these Motions for Summary Judgment, and our responses thereto, is Washington v. Baxter, a favorable 1998 Supreme Court decision establishing four (4) important legs on which to stand on when faced with a pending Summary Judgment:

• There is no black-and-white definition of serious impairment, but instead a subjectively determined totality of the circumstances standard.
• An injury need NOT be permanent to be considered serious.
• There is no requirement of an objectively identifiable injury to pierce the limited tort threshold.
• Limited Tort is a jury question under almost every circumstances, in which the trier of fact cannot determine ‘impairment’ on any legal standard, but on
a factually subjective review of the evidence before it.

With the support of the Washington Supreme Court in our corner, the carriers are fighting an uphill battle. But it is a battle they continue to fight. We need to remain equipped with more than just a single round of ammo. So, while the Washington decision remains the precedential decision on limited tort, our Superior Court has consistently held favorable rulings for our limited tort clients as well. Knowing, and briefing, these three (3) Superior Court decisions will be key in your responses to a limited tort Summary Judgment Motion.

1. Chanthavong v. Tran: A Soft Tissue Injury Can Be a Serious Injury

We have all experienced the frustration of hearing our client’s painful injuries being trivially characterized as “soft tissue.” Fortunately, two (2) years before Washington, the Superior Court “recognized that a soft tissue injury can constitute a ‘serious injury’ where it is objectively manifested and substantially impairs a bodily function.” The Court even went as far as to hold that subjective complaints of pain could be sufficient to pierce the limited tort threshold, allowing our future limited tort clients to survive summary judgment with simply subjective complaints of pain and only partial limitations on daily activities. Understanding the Chanthavong decision could be instrumental in surviving a limited tort summary judgment Motion. Give the Court as much to work with as possible to paint a picture of your client’s impaired lifestyle; the plaintiff’s deposition transcript, medical reports identifying physical limitations, damages witness deposition transcripts, medical intake sheets, and anything else that points to the affect these “soft tissue” injuries have had on your client’s life.

2. Cadena v. Latch: “Serious Impairment” is Almost Always For the Jury

Since Washington, our Superior Court has consistently deferred to the jury on the question of serious impairment. As recently as 2013, Superior Court, in Cadena v. Latch, was charged with that decision. The Court, echoing Washington, held that “whether a plaintiff suffers a serious injury ‘should be made by the jury in all but the clearest of cases.’ In reversing summary judgment the court noted that the plaintiff’s medical expert testimony and the plaintiff’s own testimony about her pain and limitations could cause “reasonable minds [to] differ as to whether a serious injury had been sustained,” By highlighting the evidence in your case and not focusing simply on the injury alone, the totality of your client’s circumstances will warrant denial of summary judgment.

3. Kelly v. Ziolko: The Serious Impairment Threshold is NOT a “Formulaic Determination”

The subjective nature of the limited tort threshold makes the “serious impairment” question one of the most difficult for any jury to answer. However, it is also one of the most important questions the jury will have to answer. The limited tort standard requires that a jury take into account all aspects of the plaintiff’s injury; both medical diagnoses as well as the affect the injury has had on the plaintiff’s life. This standard was reiterated by the Superior Court in the 1999 decision of Kelly v. Ziolko. The Court overturned a trial Court’s grant of Summary Judgment based on limited tort, focusing on the fact that the plaintiff suffered a herniated disc as a result of the motor vehicle collision. Again, the Court found that based on the totality of circumstances surrounding the plaintiff’s pain and diagnosis, that a jury could find a serious impairment. The Kelly Court established that serious impairment is a “subjective test based upon the level of impairment of the individual, and not some formulaic determination of impairment. The trier of fact cannot base ‘impairment’ on any legal standard, but must make each determination based on the individual factors involved.” Without any formula or legal standard, a jury is free to base its determination on a plaintiff-by-plaintiff review, and not some black letter definition of “serious.”

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