J-A33027-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

TOMMY HUYNH,                              :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                   Appellant              :
                                          :
              v.                          :
                                          :
SHAYLA R. BLOUNT AND 21ST CENTURY         :
INDEMNITY INSURANCE CO.,                  :
                                          :
                   Appellees              :    No. 772 EDA 2014

             Appeal from the Order Entered February 11, 2014
           in the Court of Common Pleas of Philadelphia County,
                    Civil Division, at No(s): 130203285

BEFORE:    LAZARUS, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                          FILED FEBRUARY 13, 2015

     Tommy Huynh appeals from the February 11, 2014 order which

granted the motion for summary judgment filed by 21st Century Indemnity

Insurance Co. (21st Century), and dismissed Huynh’s complaint with

prejudice.1 We affirm.

     This case arises out of an automobile accident in which Huynh was

rear-ended by Shayla R. Blount (Blount). Huynh, who had opted for limited

tort insurance coverage, sued Blount for the neck and back injuries he

claimed to have suffered as a result of Blount’s negligence.   He also sued

21st Century, his insurer, stating uninsured and underinsured claims.

Following discovery, 21st Century moved for summary judgment, asserting


1
  The order dismissed the complaint in its entirety, disposing of all claims
and all parties.

*Retired Senior Judge assigned to the Superior Court.
J-A33027-14


that Huynh could not recover because he did not suffer a serious injury. The

trial court granted 21st Century’s motion and dismissed Huynh’s complaint.

     Huynh timely filed a notice of appeal, and presents this Court with one

question:2 “Whether the trial court abused its discretion and otherwise

committed an error of law when it improperly granted [21st Century’s]

motion for summary judgment when a genuine issue of material fact exists

as to [Huynh’s] injuries and extent of injuries?”        Huynh’s Brief at 6

(unnecessary capitalization omitted).

            Our standard of review on an appeal from the grant of a
     motion for summary judgment is well-settled. A reviewing court
     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. Pa.R.C.P. 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
     non-moving 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 will review the record in the light most
     favorable to the non-moving party, and all doubts as to the
     existence of a genuine issue of material fact must be resolved
     against the moving party.




2
  The trial court did not order Appellant to file a statement of errors
complained of on appeal, and none was filed.


                                    -2-
J-A33027-14


Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa. Super. 2014) (quoting

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)).

        Following our review of the certified record, the parties’ briefs, and the

relevant law, we conclude that the opinion of the Honorable Mark I.

Bernstein thoroughly and correctly addresses Huynh’s argument. See Trial

Court     Opinion,   6/25/2014,    at   2-5   (pages   unnumbered)      (applying

Washington v. Baxter, 719 A.2d 733 (Pa. 1998), and, examining the

evidence in the light most favorable to Huynh, concluding that reasonable

minds could not differ on the conclusion that Huynh did not suffer serious

impairment to a bodily function, as he missed only three days of work, was

able to return to his job as a hairdresser, and continues his recreational

activities of lifting weights and playing soccer).      See also id. at 5 n.35

(distinguishing Hellings v. Bowman, 744 A.2d 274 (Pa. Super. 1999);

Kelly v. Ziolko, 734 A.2d 893 (Pa. Super. 1999); and Furman v. Shapiro,

721 A.2d 1125 (Pa. Super. 1998)).

        Accordingly, we adopt the trial court’s opinion, filed on June 25, 2014,

as our own, and affirm the disposition of Huynh’s issue on the basis of that

opinion. The parties shall attach a copy of the trial court’s June 25, 2014

opinion to this memorandum in the event of further proceedings.

        Order affirmed.




                                        -3-
J-A33027-14


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/13/2015




                          -4-
                                                                                                   Circulated 02/06/2015 01:43 PM




                                IN THE COURT OF COMMON PLEAS
                                    OF PHILADELPHIA COUNTY

                                        CIVIL TRIAL DIVISION


TOMMY K. HUYNH                                                      FEBRUARY TERM, 2013

               . Plaintiff, .
        v.                                                         ·NO.3285

SHA YLA R. BLOUNT,
AND
21 S1' CENTURY INDEMNITY INSURANCE '.
CO.
            .Defendants.


                                                 OPINION

        On March 1, 2013 Plaintiff filed a complaint alleging that he was negligently injured as'a

result of defendant Blount's actions I and that as a result of the accident Plaintiff suffered serious,

severe. and permanent bodily injuries. 2 Plaintiff also sued his insurance carrier, 21 st Century

Indemnity, asserting underinsured and uninsured motorist claims. 3 On November 27,2013

Defendant 21st Century Indemnity Insurance Co. filed a Motion for Summary Judgment. 4 On

February 10, 2014 that motion was granted and the case was dismissed with prejudice. 5 . On

Febnmry 24, 2014 Plaintiff filed a timely appea1. 6

        In a review of an order of summary judgment the facts must be viewed in the light most

favorable to the non-moving party,7 the plaintiff. The facts therefore are as follows. On July 14,


[ Plaintiffs Complaint ~9
2 Plaintiff's Complaint ~1 0
3 The original caption listed Farmers Insurance Group as a defendant, however, on July 8,2013 21st Century
Indemnity Insurance Group was stipulated as a Defendant in place of Defendant Farmers Insurance Group. See,
Stipulation to Amend Caption.
4 Defendant 21 st Century Indemnity Insurance Co.'s Motion for Summary Judgment.
~ Order: Feb. I J, 2014
6 Notice of Appeal: Feb. 24, 2014
7 Washington v. Baxter, 553 Pa. 434,441 (1998).
                                                              Huynh Vs Blount Etal~OPFLD



                                                          111111111111111' 111111111111111
                                                                                                 Circulated 02/06/2015 01:43 PM




2012, the car Tommy K. Huynh, plaintiff, was driving was struck in the rear by defendant Shayla

R. Blount. 8 Plaintiffs insurance coverage was a "limited tort" option and therefore did not cover

non-monetary damages unless the injuries suffered fell within the definition of "serious injury.,,9

           Plaintiff claimed to sufTer neck and back pain as a result of the accident. 10 Plaintiff

missed three days of work following the accident, 11 and thereafter could return to work at his job

as a hair dresser. His testimony is that he feels pain after standing for a'n hour. 12 However, the

injury has not interfered significantly with his recreation, as Plaintiff has continued playing

"pick-up soccer" and "lifting weights" at home.              13   Heonly claims he has been "slowed down"

and lifts "light weights" since the accident. 14

           Plaintiff did not seek medical treatment immediately following the accident of July 14.

However, twelve days later, on July 26, 2012 he sought chiropractic treatment from Dr. Sean

Pham. 15 Plaintiffs final visit with Dr. Sean Pham was five months later on January 3, 2013. 16

On January 18, 2013 he saw Dr. Bruce Levin, injections were recommended, but plaintiff

refused. He has only taken over-the-counter anti-inflammatory medication. 17

           After January 18,2013 Plain6ff ceased any medical care. On November 8, 2013, his

attorney hired Dr. Geoffrey Temple, DO, for testimonial evaluation. 18 After evaluation Dr.

Temple reported that Plaintiff has difficulty performing his "daily activities as a hairdresser" and




S Plaintiff's Complaint ~~ 5-8
9 Tommy Huynh Pennsylvania coverage selection fonn Dec. 17,2003; Policy renewal fonn, May 20,2012
10 Huynh Deposition at p. 11
II Huynh Deposition at p. 10

12 Huynh Deposition at p. 55

13 Huynh Deposition at pp. 39-41
J4   Id,
15 Geoffrey Temple, Doctor of Osteopathy,   Report:   Nov.   10,2013
10 Geoffrey Temple, Doctor of Osteopathy,   Report:   Nov.   10,2013
17 Geoffrey Temple, Doctor of Osteopathy,   Report:   Nov.   10,2013
18 Geoffrey Temple, Doctor of Osteopathy,   Report:   Nov,   10,2013
                                                                                                     Circulated 02/06/2015 01:43 PM




is "more vulnerable to subsequent trauma.,,19 Dr. Temple concluded from this that plaintiff has a

"significant impairment of bodily function." Nowhere in his report does Dr. Temple identify

what "bodily function" was specifically significantly impaired,zo Dr. Temple also says Plaintiff

"may require additional treatment"sucll as MRI scans, chiropractic treatment, and re-evaluation
                                      21
bya pain management specialist.            No further treatment or diagnostic testing has occurred ..

        Pa.R.C.P. 1035;2 provides that summary judgment should be granted "whenever there is

no genuine issue of any material fact as to a necessary element of the cause of action or defense

which could be established by additional discovery· or expert report:" To withstand a: motion for .

summary judgment the non-moving party "must adduce sufficient evidence on an issue essential

to his case and on which he bears the burden of proof such that a jury could retum a verdict in

his favor. Failure to adduce this evidence establishes that there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law.,,22

        Under 75 Fa.C.S.A. § 1705 Pennsylvania allows motorists to choose between a "limited"

and "full" tort option. Motorists who choose the "limited tort" option remain eligible to seek

compensation for economic loss sustained in a motor vehicle accident as a result of the fault of

another person. 23 Those bound by the limited tort election are precluded from maintaining an

action for any noneconomic loss, unless the injury sustained is a "serious injury .,,24 A "serious

injury" is defined as "a personal injury resulting in death, serious impairment of body function,




19 Noting that his disc bulges leaves him more vulnerable to disc hemiations. Geoffrey Temple, Doctor of
Osteopathy, Report: Nov. 10, 2013.
20 Gcoffrcy Tcmple, Doctor ofOstcopnthy, Report: Nov. 10,2013
21 GeoftTey Temple, Doctor of Osteopathy, Report: Nov. 10,2013
12 Ertel v. Patriot-News Co., 554 Pa. 93,101-02 (1996).
23 75 Pa.C.S.A. § 1705 (d)
24 75 Pa.C.S.A. § 1705 Cd)
                                                                                               Circulated 02/06/2015 01:43 PM




or pennanent serious disfigurement.,,25 The issue sub judice is whether Plaintiff sustained a

serious impairment of body function as a result of the accident occurring on July 14,2012.

         In Washington v. Baxter the Pennsylvania Supreme Court addressed the issue of whether

summary judgment was properly granted in a limited tort action arising out of an automobile

accident. 26 In Washington Plaintiffs claimedinjuries were cervical strain or sprain, cuts and

contusions, and strain or sprain of the right fooL 27 Plaintiff asserted that he still felt pain ~very

other week, but that the only aspect of his life that was changed as a result of the accident was

his inability to use a push lawn mower. 28 Plaintiff's physicians asserted that there "appeared to

be some type of joint arthritis or coalition in the right foot" and that he might need to utilize

orthotic heel   liftS.29   Plaintiff had also received a cortisone injection in his foot. 30 In Washington

the Pennsylvania Supreme Court adopted the following definition of "serious impairment of

body function," stating:

                   "The 'serious impairment of body function' threshold contains two inquiries:

                   a.) What body function, if any was impaired because of the injuries sustained in a
                       motor vehicle accident?
                   b.) Was the impairment of the 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 detennining
                       whether the impairment was serious, several factors should be considered: the
                       extend of the impairment, the length of time the impairment lasted, the
                       treatment required to correct the impainnent, and any other relevant factors.
                       An impaimlent need not be permanent to be serious.,,3!

         "The question to be answered is not whether Appellant [Plaintiff] has adduced sufficient

evidence to show that Appellant suffered any injury; rather, the question is whether Appellant


zs 75 Pa.C.S.A. § 1702
26 553 Pa. 434, 437 (J 998).
27 Id.
28 [d. at 439
Z9 ld. at 448
30 Id. at 438
31 Id. at 447-48, Internal citations omitted.
                                                                                                                  Circulated 02/06/2015 01:43 PM
·   .

        has shown that he has suffered a serioZls injury such that a body function has been seriously

        impaired."n The Washington Court found that reasonable minds could notdiffer on the

        conclusion that Plaintiffs injury was not serious. 33

              .. This Court must look not at.the injuries in isolation, but the effect of the injuryon a

        "body function. ,,34 In the present ca~e Plaintiff is still able to work at his job. He is able to play

        soccer. He is able to litt weights at home. Plaintiffs specially retained medical expert has only

        indicated that additional diagnostic treatment is a possibility. There is no evidence of "serious

        impairment of body function."         35   For the reasons set forth above the judgment should be

        affirmed.

                                                                                 BY THE COURT,




        n rd. at 449, Court's own emphasis.
        33 The Washington Court noted that the Emergency Room Doctors called the injuries mild, Plaintiff had only missed
        four or five shifts from his job where he was required to work on his feet, that the injury required only non-extensive
        treatment and that the injury had little or no impact on his performance of job functions and engagement in personal
        activities. Id, at 449.
        J4 Id. at 447
        35 Compare with. Furman v. Shapiro, 721 A.2d 1125, 1127 (Pa. Super. 1998) (reversing summary judgment where
        Plaintiffs injuries prevented her from: walking more than one block at a time, working full time, and bathing her
        daughter); Kellv v. Ziolko, 734 A.2d 893, 899-900 cPa. Super. 1999) (reversing summary judgment where
        Plaintiffs injuries prevented him from running, caused him back pain when he engaged in physical activity or sat
        for long periods of time); Hellings v. Bowman 744 A.2d 274,276 (Pa. Super. 1999) (reversing summary judgment
        where Plaintiffs injuries prevented him from riding in his wife's car, engaging in various physical activities, and
        fully interacting with his children).
