High Court Finds "Serious Injury"
A Question for the Jury in Limited Tort Cases in Washington v. Baxter

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In an opinion authored by Justice Ralph J. Cappy, the State Supreme Court has decided that it is the jury’s job to determine whether an injured plaintiff who has elected limited tort auto insurance coverage has sustained a "serious injury," and is therefore eligible for non-economic damages.

The decision effectively reverses a significant portion of the Superior Court’s ruling which held that it was up to the trial judge to determine whether a limited tort elector has suffered a serious injury.

In Washington v. Baxter, Plaintiff Kenneth Washington suffered injuries in an accident occurring between his vehicle and one operated by Defendant, Robert L. Baxter, Jr. Among Washington’s injuries were cuts, bruises and sprains, including a sprain to his right foot. Six months after the accident, Washington’s doctor diagnosed joint arthritis or coalition in Washington’s right foot. Washington, who worked at two jobs and was on his feet during most of his workdays, suffered pain but could still perform work duties and all but one of his normal daily activities.

In its opinion, the Superior Court relied on its 1995 decision in 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 courts at the earliest possible stage," since the legislature wanted to lower insurance costs and litigation costs when it enacted Act 6.

However, Justice Cappy wrote that the Dodson court, and the Superior Court which used Dodson in the Washington case, rejected the Michigan Court’s decision on the same issue. Act 6 was modeled on Michigan legislation, and in interpreting the reform measures of the Act, Pennsylvania courts have looked to courts in Michigan.

Justice Cappy observed that Act 6 is silent on whether the "serious injury" question should be determined by the judge or by the jury. Without an express direction in the statute, Cappy said that the Court had to examine the legislature’s intent in creating the limited tort option.

Cappy wrote, "The legislature, by following the Michigan model, indicated that the traditional summary judgment standard was to be followed and that the threshold determination was not to be made routinely by a trial court judge, but rather was left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained."